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Lords Chamber

Volume 727: debated on Monday 16 May 2011

House of Lords

Monday, 16 May 2011.

Prayers—read by the Lord Bishop of Chester.

Broadcasting: Product Placement


Asked By

To ask Her Majesty’s Government what is their assessment of the uses to which the revenue received from product placement will be put by commercial broadcasters.

UK legislation does now allow for the placing of references to products, services or trade marks in television programmes in return for payment. However, most importantly, the use of any product placement revenues is a matter for individual commercial broadcasters.

I thank my noble friend the Minister for that Answer. I am sure she is aware that the BBC is now almost the sole provider of UK children’s television productions, and that, across the 30 channels, only 1 per cent of children’s programmes are made here in the UK. I am sure she is also aware that the commercial broadcasters use the restrictions on advertising during children’s programmes as a reason to stop commissioning children’s programmes, because of the loss of revenue. With product placement in mind, will the Minister consider encouraging the commercial broadcasters to take up their public service responsibility to children and to use some of the revenue from product placement to start commissioning children’s programmes once again?

My Lords, I thank my noble friend Lady Benjamin for her enthusiasm on this subject. Her enthusiasm keeps the subject regularly on the agenda, for which we are very grateful. The Government understand the importance of children’s television and will carefully consider relevant responses to the forthcoming review of the communications sector. However, the Government are not seeking to impose any additional regulatory burdens on broadcasters. The decision on how to spend the revenue from placement is entirely in the hands of Ofcom.

Can the Minister tell me how, or if, the public will be notified of product placement? Will they be aware that the television programme they are watching has a specific product placement element in it? Will there be a notification?

My Lords, I thank my noble friend Lady Gardner for that question. Following Ofcom’s introduction in 2011 of new rules for product placement on television, a large double P logo must appear on the screen for a minimum of three seconds at the start and the end of any programmes. The logo must also appear at the return of the programme following any advertising breaks.

My Lords, as the Minister will know, it is very much early days in the application of the new product placement rules. However, can she assure the House that the department will work very closely with Ofcom to ensure that children’s television remains solidly safeguarded from any creep towards the exploitation that product placement might entail?

My Lords, the noble Baroness is absolutely right. We believe that it is right to be cautious initially so as not to alienate viewers, and special safeguards have been put in place on what may be promoted in this way. Some, such as restrictions on product placement of alcohol and prescription medicines, are set out in European law, and some in the UK regulations—such as the restrictions on foods high in fat, salt and sugar, which largely match the current advertising restrictions.

My Lords, following the point made by the noble Baroness, Lady Benjamin, and given that we already have product placement, can we also encourage the feeding in of some of these resources to the production of quality radio for children? Surely this should be a particularly important area, not least because the BBC seems to be reneging somewhat on its commitment to quality radio programmes for children.

The noble Baroness has a good point. Although it is up to Ofcom to assess whether broadcasters are meeting their obligations on children’s television, which includes the wireless, we also look to the broadcasters to consider allocating perhaps a percentage of their product-placement income to areas such as the Open University and libraries, to encourage more reading.

Following the children’s television theme, I should point out that there are other potential sources of income—and I apologise in advance for using an acronym. If the CRR is abolished in the next Communications Act, ITV has undertaken to put extra money into British content. Does my noble friend agree that this undertaking should specifically include children’s programmes?

My Lords, we are very much aware of the possibility of more money going to children’s programmes. As I said, however, it is a matter for Ofcom.

Will the Minister consider asking Ofcom to specify a quota for children’s programmes? It could, of course, be updated from time to time. It would also ensure, in the public interest, that there is a sufficiency of children’s programmes. I think that that is something that the noble Baroness, Lady Benjamin, would like to see.

My Lords, I am sure that my noble friend Lady Benjamin and the noble Lord, Lord Borrie, would like to have more programmes for children, and more money going into those programmes. However, Ofcom is independent and it would be wrong if we started to try to influence it in any way.

I am afraid that I cannot remember the details of Ofcom’s regulatory process for people who transgress in this area.

My Lords, is it satisfactory simply to brush so much aside by saying, “This is a responsibility of Ofcom”? The broadcasting companies must have signed a contract, and if that contract had been satisfactory it would have included provision for an appropriate contribution to children’s programmes. Would the noble Baroness be good enough to enquire of Ofcom whether it is satisfied that these companies are fulfilling their contracts?

My Lords, the last Government created Ofcom as an independent regulator. As I think I said earlier, as much as we would like to encourage various different programmes and practices, Ofcom is an independent body.

My Lords, I am sure that the Minister will agree that the Welsh television channel S4C has an enviable record in the production of children’s programmes. Although the Government have no massive powers in this area, will they encourage the translation of more of those Welsh television programmes into the English language?

I am sure that the Government would love to be able to do that, and no doubt we can suggest something. I am sure that my noble friend Lord Roberts could write to them to suggest it.

EU: Budget


Asked by

To ask Her Majesty’s Government, in the light of their programme of public sector savings, whether they will approve proposals to increase over the next three years the United Kingdom’s current net contribution of £8 billion to the European Union budget.

My Lords, the UK cannot act unilaterally and is required to make its contributions to the EU budget under obligations imposed by the treaties. However, the Government are very concerned about the UK’s growing net contributions and are working hard to reduce them within the constraints of the 2007-13 financial perspective agreed in December 2005. According to the latest forecast, the UK’s net contributions will rise from £4.7 billion in 2009-10 to £8.9 billion in 2014-15.

I thank my noble friend for his carefully considered reply which is, I appreciate, configured by the limitations to his powers. However, does it really make sense to continue to pour billions of pounds into the economies of other EU countries, to bring fantastic infrastructure improvements to Greece, Spain, Portugal and Ireland, while here at home our infrastructure is in decay? Could we at least contemplate at some stage diverting those funds into our economy, which at this stage would be a classical contracyclical investment, not only bringing great strength to our economy and improving our infrastructure but creating, allowing for the multiplier effect, at least 250,000 new jobs just when they are needed? Surely we should put the interests of our unemployed first.

My Lords, I completely agree with the need to invest in infrastructure in this country, which is why we launched the first ever national infrastructure plan last autumn, at the beginning of our suite of pro-growth policies. Approximately £40 billion to £50 billion will be invested in the UK's infrastructure each year over the next five years. As to the European budget, it is quite right that we should make our contribution; but it is completely wrong that the previous Government gave away a significant part of the UK's rebate. The European Commission's figures show that in this year alone, the amount of rebate given away by the previous Government in 2005 will cost us £1.98 billion. As the result of the action that my right honourable friends the Prime Minister and the Chancellor took in reducing by half the increase this year, we clawed back £350 million at the December decision. That is the scale of the challenge we face.

My Lords, would the Minister care to remind us of the size of the EU budget as a percentage of the gross product of the whole of the EU? Will he confirm that the percentage is roughly the same as it has been for some years?

My Lords, there are various ways of peeling that onion, but there is indeed a maximum limit of 1.3 per cent, or thereabouts, of European GNI, and a sub-limit in the current financial perspective of about 1 per cent of European GNI. However, those numbers leave considerable latitude for headroom, and the regrettable fact is that that permits the annual budget to go up, if we do not restrain it, by more than inflation year-on-year. Regrettably, there is not enough constraint on total expenditure and it can rise if we are not vigilantly on the case, as this Government are.

My Lords, does the Minister agree that in promoting growth across the EU, even more important than the EU budget is the completion of the single market? What are the Government doing to promote the completion of the single market, particularly in services?

I am very grateful to my noble friend. Of course, we discussed some of the structural reform issues in a debate in the Chamber last Thursday. I can reiterate and confirm that the Government are working very hard indeed to be an active supporter of the whole 2020 structural reform programme. Completing the single market is perhaps the most critical component of that, and the Government are pushing very hard for that to happen.

My Lords, in the light of the huge increases in our net contribution, which will continue, is it not time that we had a cost-benefit analysis of our membership of the EU; or, perhaps better still, a referendum on whether we should remain in it?

My Lords, the analysis is carried out periodically by the Treasury. Reviews of the independent analysis of the benefits of our membership are available on the Treasury website. Europe accounts for 40 to 50 per cent of our exports. It is critical that we play a constructive part in Europe and that we work on factors such as those referred to by my noble friend Lord Newby to make sure that the market works better and that the UK takes full advantage of it.

My Lords, this is inevitably an extremely difficult issue at a time of stringency, but does the Minister agree that the rise in our contribution agreed in the 2005 budget deal was intended principally to meet this country’s commitment to enlargement and the increase in the structural funds that went with it? Does he also agree that, if we had not made that agreement, Poland and other new member states with living standards of a third or 40 per cent of ours would have ended up contributing to the British rebate? As for the unfairness in our contributions, does he accept that at the end of this financial period the UK net contribution will be on a par with that of France and Italy—member states of similar size and wealth?

My Lords, I do not begin to accept any of that analysis. In 2005, the Prime Minister, evidently without consulting his Chancellor, gave away in the rebate a total of €10.5 billion over the current financial perspective period. What the UK got in return is a complete mystery to me. We were promised some leverage in fundamental reform of the common agricultural policy and we got nothing. This Government will not see a repeat of that.

Parliament: Elected House of Lords


Asked By

To ask Her Majesty’s Government what measures they will take to secure the primacy of the House of Commons if the House of Lords is replaced by an elected Chamber.

My Lords, an important part of the plans for reform of this House is the continued primacy of the House of Commons. The Government are clear that the role of this House is, and should continue to be, to complement the other place.

My Lords, I thank the Leader of the House for his reply, which I think to an extent recognises the considerable anxiety not only among Members of your Lordships’ House but among members of the Political and Constitutional Reform Committee of the other place about the failure to address adequately the question of primacy of the other place. We all await with eager anticipation the statement from the Deputy Prime Minister and his draft Bill to determine whether they provide further insights into this important constitutional issue. However, I am sure that the Leader of the House will agree that the profound constitutional implications that attend abolition of your Lordships’ House and its replacement with an elected second Chamber require that any proposals that come forward enjoy genuine confidence. In this regard, will the noble Lord confirm that there will be a free vote on the Bill in both your Lordships’ House and the other place?

My Lords, I join the noble Lord and, I expect, many others in eagerly anticipating the announcement that will be made shortly by my right honourable friend the Deputy Prime Minister. With regard to understanding the profound implications of any change that might take place, again I agree with the noble Lord: they would be profound if this House became a wholly elected body, as I think is well understood by those who propose such a change. We would decide the issue of a free vote when we came to a final conclusion about what would appear in a Bill, if any, and when it would be presented to both Houses of Parliament.

My Lords, I remind the Leader of the House of the conclusion of the Cunningham committee that, should any firm proposals come forward to change the composition of the Lords, the conventions between the two Houses would have to be examined again. Can the noble Lord assure me that if, as we understand will be the case, a Joint Committee is set up, it will be charged with looking at the conventions between the two Houses?

My Lords, it is proposed that there should be a Joint Committee of both Houses—an authoritative body of senior parliamentarians who would meet and examine the White Paper and the draft Bill. They could look at any aspects of them, which might include the conclusions of the Cunningham committee. My own view is that in the long term, if the composition of this House were to change, the conventions might change between this House and another place but there is no reason why they should. That will be up to decisions taken by the Members of either House.

Will my noble friend take this opportunity to denounce the ludicrous reports that have appeared in the press that the size of this Chamber could be reduced by holding some kind of lottery? Is that not insulting to this Chamber and to its Members?

My Lords, I dare say that I ought to say I cannot pre-empt a statement from my right honourable friend, the Deputy Prime Minister, but on this occasion I am prepared to confirm that it is an absurd suggestion and will not appear in the White Paper.

Have the Government, whichever part of the coalition, still not picked up the overwhelming voice of the British people as expressed in the referendum a week last Thursday, which showed by a majority of between two-thirds and three-quarters that the British people do not want expenditure, time and energy spent on fancy constitutional change, even if they are being proposed relentlessly by such an important and significant figure as the Deputy Prime Minister? Can I suggest something very helpful to the Government? They would save two precious commodities—time and money—if they did not go any further with these proposals.

My Lords, it is always useful and helpful to have some advice from the noble Lord, Lord Grocott, who was a Member of the Government who published several White Papers on this subject in their period in office. We hope to publish only one.

Does the Minister accept that even if there were to be no formal change in the powers of this House, in practice a wholly or largely elected House would find it very difficult to show the sensitive respect for the primacy of the House of Commons that this Chamber does with, from time to time, a few justifiable aberrations?

My Lords, it is a good point that a wholly elected House may well wish to use the powers of this House in a more assertive way and no doubt that is one of the issues a Joint Committee would wish to look at.

My Lords, following the question of the noble Lord, Lord Grocott, did my noble friend see the statement by Mr Hilary Benn last week that the Labour Party is now committed to a 100 per cent elected House and that nothing less will do? Does he agree that the balance of responsibility and power between the two Houses will inevitably be affected by the number of people elected to this House and does he therefore think that the primacy of the Commons should be reflected in the draft Bill by at least keeping in the option of 80 per cent elected?

My Lords, my noble friend makes a good point. Different Members of either House will feel differently about the role of primacy of the House of Commons depending on what proportion of this House were to be elected. I noted too, as he did, that the shadow Leader of the House of Commons, Mr Hilary Benn, said that the Labour Party was now entirely in favour of a 100 per cent elected House.

My Lords, might I press the Leader of the House a little further on the point raised by my noble friend the Leader of the Opposition? The noble Lord said in relation to the Cunningham committee report that the issues round the conventions “might” be revisited. I remind him that the Cunningham committee report was accepted by both Houses unanimously and was unequivocal in saying that the conventions must be revisited.

My Lords, I would have to refresh my mind on the conclusions of the Cunningham committee, but I do not think that it was an absolute requirement that the conventions must be revisited. The committee stated that if this House were to be substantially reformed, that could have an effect on the conventions, which should be re-examined at that stage. I see no difficulty in that.



Asked By

To ask Her Majesty’s Government what is their assessment of the proposed Palestinian statehood declaration, which is planned to be placed before the United Nations General Assembly in September.

My Lords, we see negotiations towards a two-state solution as the only way to meet the national aspirations of Israelis and Palestinians and lead to a sovereign, viable and contiguous Palestinian state living in peace and security alongside a safe and secure Israel and their other neighbours in the region.

The UK is fully committed to supporting the Fayyad plan and helping build the institutions of a future Palestinian state, but a negotiated solution remains the only result that will actually bring peace and justice to the Palestinian people. We call on the parties to return urgently to negotiations.

My Lords, I thank the Minister for his response. Does he think that the agreement signed by Fatah and Hamas is a step in the right direction for the attainment of statehood? Does he also feel that the work done by the Prime Minister, Salam Fayyad, in building the Palestinian institutions and economy has created the apparatus of a state, and that these achievements need to be recognised?

Of course this step is not yet fully consummated, but we want to see the formation of a Government who reject violence. If Hamas is to be part of that Government, it must reject violence; that is our position. If that were to go forward on the basis of the rejection of violence, we would see that as a good basis for building further hopes and moves towards serious negotiation. The Fayyad plan, as I have said, is something that we support. It takes us in the right direction towards building Palestinian statehood and getting the negotiations going again, which is central and crucial.

Would the Minister not agree that the tragic events of the weekend on the Syrian, Lebanese and Gazan border are just a taster of what we are in for as long as the vacuum in negotiations continues, and that the situation could get very much worse, given the instability in a number of Arab countries and the possibility that new Governments will be very sensitive to the views of radicals? Will he say what steps the Government are taking to urge the US President, who is to make an important speech on this matter in the next few days, to do something serious with the partners in the quartet to revive the peace process?

We are urging our allies and friends, including the United States, at all times. However, perhaps the noble Lord will recognise that a clear development in the region is the increasing determination of the surrounding Arab states to play for once a more forward part in these developments. Obviously we are deeply concerned by the events at the weekend, but if one can stand back from such horrors for a moment, it seems that they reinforce the urgent need for the Israeli Government and authorities to begin to move in a positive direction in a very fluid overall situation in the Middle East.

My Lords, does the Minister agree that a premature declaration of a Palestinian state might destabilise the region rather than contribute to the emergence of a stable two-state solution?

The right reverend Prelate is right; it might do so. Of course one understands why there is a desire to move forward in this direction, but our position is that statehood must be built through the pattern of a negotiation that must be resumed, and that pressure should be put on both the Israeli side and on a peace-aiming, violence-rejecting Palestinian Government to move forward on that basis.

Is there any evidence of Hamas rejecting its present declaration about the death of Israel? As long as that continues, is it not a complete response to the present situation? Hamas must withdraw from its present declaration.

I understand what the noble Lord is saying; I think we all do. However, our attitude and approach to Hamas will change when there is proof that Hamas has changed, and that proof is not yet visible.

My Lords, while I welcome the slight change of tone I think I detect in my noble friend’s remarks about Hamas, will he confirm to the House that Britain now does not require Hamas to recognise Israel as a precondition of negotiations, but that it naturally expects that to come before the end of negotiations?

We want it to be part of the negotiations and part of the recognition of the quartet principles. My noble friend talks about a changing tone. We all have to realise that the whole situation throughout the Middle East is changing. The foreign policy of Egypt towards Gaza is changing, and the Syrian situation is highly fluid. All around there is enormous change, and there is tragedy as well, as we have seen over the weekend. In these circumstances, we have to retain a very agile and clear view of where we stand and where we want to go.

My Lords, does the Minister feel that the alliance between the PLO and Hamas, an organisation that is filled with terrorists and that has vowed the destruction of Israel, will help in the acceptance of a Palestinian state or hinder it?

It would help only if it produces a Government dedicated as a partnership for peace to negotiation. We are not there yet. The implication of the noble Lord’s question is quite right: until we move to that point, it will not help; when we are at that point, it will help.

Consumer Insurance (Disclosure and Representations) Bill [HL]

First Reading

A Bill to make provision for disclosure and representations in connection with consumer insurance contracts.

The Bill was introduced by Lord Sassoon, read a first time and ordered to be printed.

Fixed-term Parliaments Bill

Report (2nd Day)

Clause 2 : Early parliamentary general elections

Amendment 19 not moved.

Amendment 20

Moved by

20: Clause 2, leave out Clause 2 and insert the following new Clause—

“Early parliamentary general elections

(1) An early parliamentary general election is to take place if—

(a) the House of Commons passes a motion in the form set out in subsection (2), and(b) if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).(2) The form of motion for the purposes of subsection (1)(a) is—

“That there shall be an early parliamentary general election.”(3) An early parliamentary general election is also to take place if—

(a) the House of Commons passes a motion in the form set out in subsection (4), and (b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).(4) The form of motion for the purposes of subsection (3)(a) is—

“That this House has no confidence in Her Majesty’s Government.”(5) The form of motion for the purposes of subsection (3)(b) is—

“That this House has confidence in Her Majesty’s Government.”(6) Subsection (7) applies for the purposes of the Timetable in rule 1 in Schedule 1 to the Representation of the People Act 1983.

(7) If a parliamentary general election is to take place as provided for by subsection (1) or (3), the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister (and, accordingly, the appointed day replaces the day which would otherwise have been the polling day for the next election determined under section 1).”

My Lords, the new clause inserted by Amendment 20 would replace the existing Clause 2. It is focused on three purposes. It removes from the Bill as received from the other place ambiguities and vagueness about what is a Motion of no confidence and what is a Motion of confidence. It protects the Speaker of the House of Commons by removing him from the process of determining what is a Motion of no confidence or a Motion of confidence, and it improves the protection of parliamentary privilege. I see it as an exercise in damage limitation.

This new clause, unlike other new clauses tabled by noble Lords to replace Clause 2, makes no other changes to the Bill. It would do nothing to thwart the essential purposes of the Government in the Bill. It retains the two-thirds provision and the 14-days provision which the Government want. I have made plain in other debates that I do not like these provisions and, indeed, I think the whole undertaking of this Bill to establish fixed-term Parliaments is a bad idea, but in this House, presented with the will of the House of Commons, those of us who do not like it have, I fear, to accept that it is a bad idea whose time has come.

If the House accepts the new clause unamended, the legislation will, I submit, provide for the principles that the Minister told us in Committee the Government wish to establish. He said that,

“within a context of having a fixed term, there should nevertheless be a mechanism to trigger an early election if there has been deadlock in the other place, if a Government lose confidence, and if no Government can be formed who maintain confidence. There is an argument for having consensus about Dissolution and proper provision being made for it, as well as for trying to minimise the potential for abuse of the trigger on the part of the Executive and to get clarity as to what constitutes a vote of confidence. There may well be circumstances in which a vote of no confidence does not necessarily have to trigger a general election. How do we clarify those circumstances in a way which is acceptable? These are the general principles and issues which I want to put flesh on”.—[Official Report, 29/3/11; col. 1215.]

I believe that this new clause is also consistent with the conclusions of your Lordships’ Select Committee on the Constitution. I am most grateful to the noble and learned Lord the Minister and his colleague Mr Harper for meeting me and the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin and the noble Lord, Lord Pannick, who have put their names to the new clause. Of course, I have drawn enormous encouragement from their doing so. The Minister was characteristically courteous and constructive at the meeting. In light of our productive discussion, the new clause we originally tabled was somewhat redrafted and improved. I was delighted when the Minister added his own name to the new clause.

Clause 2(2) as drafted—concerning Motions of no confidence and Motions of confidence—contains problematic ambiguities and vaguenesses. These were helpfully described by Dr Anne Twomey in her written evidence to your Lordships’ Select Committee on the Constitution, at paragraphs 4.11 and 4.12 on page 152 of the compendium of written evidence. Such ambiguities do not matter where constitutional procedures are not statutorily prescribed. Indeed, they may be beneficial as they allow the determination of who is to be the Government to happen in response to fluctuating political realities. But in a statutory system, they are dangerous, creating a combination of uncertainty and inflexibility.

To the observations made by Dr Twomey, I would add that there is a further crucial vagueness in Clause 2 as drafted, in that there is no legal definition either already in existence or provided by the Bill as to what is a Motion of confidence or no confidence. The reason why this is so crucial and dangerous is that, as the Bill stands, it could in some circumstances lay the onus of interpretation, and therefore of decision as to the fate of the Government and whether there is to be a general election, on the Speaker. Although in some instances it would be entirely clear from the wording of the Motion that the vote was a confidence or no confidence vote, it would by no means necessarily be so. As the invaluable brief from the Library of the House of Commons says:

“Yet, despite their central importance, there is no certainty about the rules on the form and applicability of confidence motions in the UK Parliament, as it is established by convention rather than by statute or standing order of the House … There is no standard formulation for confidence motions”.

Motions may be regarded as Motions of censure or confidence according to particular circumstances. A Motion to reduce a Minister’s salary was regarded as a confidence Motion in 1895. Motions in two debates on Suez in 1956 were regarded by the House of Commons as confidence Motions, though neither the substantive Motions nor the amendments were formulated as Motions of no confidence or Motions of confidence. In 1976, an adjournment Motion was treated as a confidence Motion following the defeat of the Government on their public expenditure White Paper. In 2003, Mr Blair made clear only after the debate and the vote that he regarded the vote on the Iraq war as a confidence vote. It is very hard to see how the Speaker could possibly have issued a certificate in some of these situations.

Under our existing arrangements, it is for the Prime Minister and the House of Commons to judge whether a Motion is a matter of confidence. Under the system that the Government have hitherto proposed, it would be for the Speaker. This, as the noble Baroness, Lady Boothroyd, explained to us compellingly in Committee, would be a major extension of the Speaker’s role and could be a very dangerous one. It could politicise the role of the Speaker, requiring the Speaker to decide a supremely contentious, vexed and fraught political issue. In Committee, the noble Lord, Lord Martin, described the vicious pressures that could be expected to be brought to bear on the Speaker in such circumstances. If the Speaker were perceived to have taken sides, his reputation as a servant of the whole House and his reputation for impartiality and integrity could hardly survive. Not only would the reputation of the individual Speaker suffer, but at a time when we all desperately want to see the reputation of Parliament regained, it would also affect the very office of the Speaker, which personifies the institution of the Commons. The new clause therefore omits the requirement for the Speaker to issue certificates. I am very pleased to see that none of the amendments now on the Marshalled List relating to Clause 2 seeks to preserve the requirement for the Speaker to issue certificates.

The new clause also seeks to provide clarity as to what is to be a Motion of confidence or of no confidence. Under the new clause, Motions understood politically to relate to confidence could in the future still be debated and voted on in a multiplicity of forms, just as they have in the past. But for the purposes of establishing constitutionally and legally, in the new context of this fixed-term Parliaments legislation and provision within it for an early parliamentary general election, whether a Motion of confidence or no confidence has or has not been passed, the Motion must have been tabled in the precise terms prescribed in the new clause.

Let me note here that the new clause would allow for the possibility of the Prime Minister resigning and an early general election occurring in that situation. This is something that the noble Lord, Lord Norton, and I have both been concerned to see accommodated within the legislation. The noble Lord has tabled a new clause which deals specifically with that. This new clause does not do so because I think it is unnecessary. Under the new clause, if the Prime Minister and the Government resigned, he could give way to another Prime Minister who would seek a vote of confidence. If the new Prime Minister secured the confidence of the House of Commons within 14 days, no general election would follow, and if he did not, there would then be an early election. Alternatively, a Prime Minister who resigned could ask the House of Commons to agree by a vote of two-thirds of its Members that there should be an early general election. In these ways, the Government’s purpose is preserved, that the Prime Minister should not be free himself to determine the date of a general election. However, the flexibility exists to hold an early election following the resignation of the Prime Minister if the House of Commons judges it to be appropriate.

There is also the important consideration that tightening the definitions of confidence and no confidence Motions, and removing from the Bill the Speaker’s duty to issue a certificate, may help to protect the House of Commons from the risk that proceedings in Parliament, contrary to the doctrine of parliamentary privilege and the principle so eloquently expressed in Article 9 of the Bill of Rights, would be questioned in court. Academic witnesses and your Lordships’ Select Committee have taken the view that while the risk of intervention by the courts cannot entirely be discounted, there is no serious practical risk of this happening. The Clerk of the House of Commons, in formal evidence based on the expert advice available to him and reiterated after he had taken account of all the evidence given to both Select Committees, disagrees. I believe that we should do what we can to minimise any risk, even if it is a remote risk, to parliamentary privilege.

I explained in Committee during our debate on Amendment 42 why, for my part, I do think that there is a real risk that the Bill as we now have it could increase the potential for intrusion by the courts, and the risk may come particularly from the European Court of Human Rights, into what should be strictly internal proceedings in Parliament. I will not repeat the points I made then. Much more important than what I said were the warnings given in Committee by the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin. It is among the many virtues of your Lordships’ appointed House that we have among us former Speakers of the House of Commons. We recognise that they speak with particular authority concerning such matters.

My noble and learned friend Lord Falconer and my noble friend Lord Bach took me rather by surprise when they tabled their amendments to this new clause on Thursday. I knew, of course, that they were opposed to the 14-days provision; that is common ground among many of us. But the purpose of this new clause has been strictly focused on preventing unnecessary damage to the office of the Speaker and to the effective functioning of the House of Commons within the context of the Government’s policy on fixed-term Parliaments. Ministers have responded constructively to these concerns, which have also been expressed by very eminent Cross-Benchers as well as by me. We negotiated to achieve the formulation in the revised new clause set out in Amendment 20. I gave the Minister my word that I was content with it and that I would table the revised new clause in exactly those words. So my noble friends have placed me in a delicate position. What matter, however, are the decisions the House will take, having looked at the new clause, the amendments tabled to it, and the other interesting new clauses that have been tabled. I beg to move.

Amendment 20A (to Amendment 20)

Moved by

20A: Clause 2, line 13, leave out from “(4)” to end of line 16

My Lords, the circumstances in which there can be an early general election is the outstanding critical issue in the Bill. If one looks at this problem, one sees yet further evidence of the Bill not having been thought out. I shall identify what appeared in Committee to be the three main problems with Clause 2.

The first was the involvement of the Speaker. We were privileged to hear speeches from the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, both of whom made it clear, pretty well beyond argument, that the involvement of the Speaker was entirely wrong. The amendment which my noble friend Lord Howarth has put down along with the noble Baroness, the noble Lord and the noble Lord, Lord Pannick, would get rid of the involvement of the Speaker. The noble and learned Lord, Lord Wallace of Tankerness, has supported that. There appears, therefore, no longer to be an issue in relation to the involvement of the Speaker. I support my noble friend Lord Howarth in expressing gratitude to the noble and learned Lord for achieving that. It is typical of the way in which he has conducted himself in relation to this matter.

The second issue was the lack of a satisfactory definition of a vote of no confidence, as referred to in Clause 2(2). That had two separate aspects to it. First, you could not tell what was meant by a Motion of no confidence. Did it include anything that would be understood to mean a Motion of no confidence, or did it mean only something that said, “This House has no confidence in the Government”? That first bit of the problem has been solved by the amendment moved by my noble friend Lord Howarth because it makes it clear that the only sort of Motion of no confidence that would trigger an early general election is one that says, “This House has no confidence in the Government”. The amendment is good in that respect. However, it does not deal with the other problem in relation to Motions of no confidence; namely, that there are many Motions that could be passed by the House of Commons that would indicate that it had no confidence in the Government.

The first and most obvious is the House failing to pass a Motion of confidence in the Government. For example, Mr Major’s Government were defeated on Maastricht. They then put down a Motion of confidence in themselves. Had Mr Major’s Government then been defeated on the Motion of confidence in the House of Commons—which they were not—there could not have been a general election at that point, because the only possible trigger for a general election would have been a Motion of no confidence and not a failed Motion of confidence. After Mr Major’s Government had failed to win the Motion of confidence, the Opposition would then have had to put down a Motion of no confidence in the Government. If that had been won by the Opposition—that is, if a Motion of no confidence in the Government had been passed—that still would not be the end of it under this Bill, because there would then be a 14-day period in which either the existing Government of Mr Major could have sought to put together a majority to survive or an alternative Government could have emerged. So if the facts are taken and applied to an historical example, it produces a rather unsatisfactory result.

There are three other shots on the Marshalled List at how you deal with a Motion of no confidence. First, there is the amendment of the noble Lord, Lord Norton of Louth. He defines a Motion of no confidence as being either a vote of no confidence in the Government or a negatived vote of confidence; that is, the Government have put down a vote of confidence in themselves and it has been defeated by the House of Commons. The noble Lord then includes the 14-day period after that. It is in some ways better than a simple Motion of no confidence but it still keeps in the 14-day period. The noble Lord introduces another innovation in that his amendment allows for a general election if the Prime Minister resigns and a period of 60 days goes by in which no alternative Government emerge. The problem with that is that if you have a majority and you want to have a general election at any time, you simply resign, sit out the 60 days and then have a general election. That would be contrary to the purposes of the Fixed-Term Parliaments Bill and very unsatisfactory.

The next alternative is in the amendment put forward by the noble Lords, Lord Cormack and Lord Hamilton of Epsom. The difference between that amendment and the other amendments is that it seeks to define a vote of no confidence as including not passing the Second or Third Reading of a Finance Bill or the passing of a Motion of no confidence in Her Majesty’s Government. That is a third definition which also keeps in the 14 days. Or am I wrong about that? It does not keep in the 14 days.

The noble Lord, Lord Cormack, defines a Motion of no confidence as being either a Motion of no confidence or the defeat of a Finance Bill and gets rid of the 14 days.

The final definition—which is in every single respect perfect—has been tabled by the noble Lord, Lord Armstrong of Ilminster. It states basically that if there is a vote of no confidence there has to be a general election, and that a vote of no confidence occurs where the Queen’s Speech is defeated, a Motion of no confidence is passed, a Motion of confidence is negatived or the Prime Minister has indicated in advance that a particular vote is to be regarded as a vote of no confidence and that vote is defeated. The best example of that is when Mr Wilson was Prime Minister in 1976 and his public expenditure estimates were defeated one evening in the House of Commons, which was obviously a critical matter for his Government. He was keen to establish that the Commons had confidence in his Government and so he announced in advance that the next day’s Motion on the adjournment would be a Motion of confidence. That was treated by Parliament as a Motion of confidence in the Government; it went in favour of the Government and he survived.

What should the House do in the context of this galaxy of opportunities that has now been offered to it? I respectfully suggest that the House should do the following: respect the work that has been done by the noble Baroness, Lady Boothroyd, the noble Lords, Lord Martin and Lord Pannick, and my noble friend Lord Howarth and build on it; and knock out the 14 days, which is a total waste of time and contrary to what the House of Commons would do. No one supported it during the course of debate. The way to achieve that is to amend the amendment of the noble Baroness, Lady Boothroyd, and her colleagues and knock out the 14 days.

The one circumstance in which 14 days would be worth while is where a Government are formed after a general election and then immediately fail to get the confidence of the House of Commons. It would not be right to force a general election at that time. Everyone will remember the one example of that where Mr Baldwin headed the biggest single party after the election in 1923, Labour came second and the Liberals came third. The Conservatives under Baldwin produced a King’s Speech that was defeated the first time round and Labour was then given the opportunity to form its first Administration. That was a wholly appropriate working of the constitution.

On the Baldwin point, it is quite important to know that in 1924 there was, as it were, an understood majority in waiting. It was not a random resignation by Baldwin. Therefore, it was clear what the outcome would be.

I completely agree with that but it does not change the basic principle that if the first party after a general election cannot form an Administration it should go to the next person most suitable to do it. That should be regarded as an exception.

What I would recommend to the House and what my party is going to do is to vote in favour of my amendments to the amendment moved by my noble friend Lord Howarth. Those amendments have the effect of knocking out the reference to 14 days but leaving in the option of discussing whether there should be a new Government if the Government are in the Baldwin situation whereby they have never gained the confidence of the House of Commons. It is not perfect and lacks the beauty and comprehensiveness of the amendment tabled by the noble Lord, Lord Armstrong. But it is a sensible, clear way in which to deal with the three problems—first, by knocking out the references to the Speaker and to 14 days and by at least giving us certainty about what is meant by a Motion of no confidence. For those reasons, that is the position of my party. I beg to move.

My Lords, we have made real progress. When the Bill was presented to this House on 1 March, there was a consensus across the House that it was very unsatisfactory legislation, that it had been very badly and in some respects carelessly drafted and that it was the duty of this House to try to make it better. During our Committee stage, we had some fascinating debates and we have, I believe, begun to make it better. That is signified by the presence of the name of my noble and learned friend Lord Wallace of Tankerness on the amendment, which was very eloquently moved by the noble Lord, Lord Howarth. The amendment has very significant support from some very distinguished Cross Benchers, including particularly two former Speakers of the House of Commons. So I am extremely glad that the last state is better than the first.

I have always been worried throughout my time in Parliament about the incomprehensibility of legislation to those who sent us to Parliament. It is my belief that legislation should be understandable to the ordinary, intelligent and well informed voter—and there are far more ordinary, intelligent and well informed voters than many would give credit for, as was made clear in the referendum that took place not so long ago. I have tried very hard in the amendments that I have tabled, first, to try to make this Bill more understandable and, secondly, in the third version of my amendment that is on the Marshalled List today, to try to reflect some of the understandable criticisms levelled at my original amendment in Committee. That in itself illustrates the general wisdom of this House, which will normally leave votes until Report. What I have tried to do in the amendment today is to heed what was said in the lengthy, fascinating and well informed debate that we had in Committee. Above all I have taken out, as have others, the reference to the Speaker of the House of Commons. The more we thought about and debated that, the clearer it became that it was neither necessary nor desirable so it does not feature in the amendment moved by the noble Lord, Lord Howarth, nor indeed in any of the others. That in itself is a significant step forward.

However, I also tried to reflect the requests which came, particularly from the Liberal Democrat Benches, that the definition of a vote of confidence should be clearer and simpler. In my first amendment, I had a number of definitions not dissimilar from those listed in the amendment tabled by the noble Lord, Lord Armstrong of Ilminster. I am the first to admit readily that the noble and learned Lord, Lord Falconer, is correct in saying that none of us has got it absolutely right; there is no perfection in these matters. I also pay tribute to my noble and learned friend Lord Wallace of Tankerness, whom I have met on a number of occasions and who has been extremely anxious both to listen and discuss and to try and improve the Bill.

Having said that I will refer briefly, if I may, to the amendment in my name, which has the wonderful designation of Amendment 22ZA and which attempts to make the law a little more understandable. This amendment has been supported by my noble friend Lord Hamilton of Epsom and I am most grateful for that. It says that an,

“early parliamentary general election shall take place if … the House of Commons passes, by a two-thirds majority”,

of those voting,

“a resolution ‘That there shall be an early general election’.”

Frankly, I did not like the existing provision in the Bill that it should be two-thirds of the membership of the House. As it is bound to be a big vote, I can think how very unsatisfactory it would be if, because of some major problem with the weather or some accident in London that delayed Members getting to the House, there were a clear two-thirds majority in that big vote that was not quite two-thirds of those elected to the House—“including vacant seats”, as in the Bill—so I have made it a two-thirds majority of those voting.

My amendment also says—this is where my 14 days comes in—that,

“if the Prime Minister tenders the resignation of Her Majesty’s Government and within 14 days no new Prime Minister has accepted Her Majesty’s invitation to form a government”,

there will be an early general election. That is not a prescriptive 14 days. There need not be more than 14 hours. It might happen extremely quickly but it cannot drag on because across the House, at Second Reading and in Committee, there was almost universal distaste for long periods of bartering and horse-trading. There were many amusing references to what the Whips might get up to in another place—I am glad to see the noble Baroness, Lady Taylor, a distinguished former Chief Whip, indicate assent at this point—to try to reverse a vote that had taken place, so my amendment says that if there is a vote of no confidence, that should be sufficient to trigger a general election.

We have debated this extensively at Second Reading and in Committee. Many of us have cited the famous example of Lord Callaghan who, as Mr James Callaghan, the Prime Minister, resigned in March 1979 immediately upon being defeated in a vote of no confidence in that House. His exceptionally dignified words on that occasion have been quoted in this Chamber more than once. He said that the House of Commons had spoken and it was now for the country to decide. It is really that Callaghan principle that I have tried to translate into my attempt at a new clause: if the House of Commons passes a Motion of no confidence in Her Majesty’s Government, the Prime Minister shall forthwith submit to Her Majesty a request for a proclamation to dissolve Parliament and provide for a general election.

Then I have sought to give a simpler definition of a vote of no confidence, falling short of the number of definitions that I had in my first amendment in Committee and of the list provided for the House today by the noble Lord, Lord Armstrong of Ilminster, but saying that if the House denies a Second or Third Reading to a Finance Bill, that is clearly an expression of no confidence in the Government of the day because the whole purpose of voting supply is fundamental to the governing of our country. I also said that if a Motion of no confidence in Her Majesty’s Government, tabled by the Leader of Her Majesty’s Opposition, is passed, no matter whether the majority is one, as it was in 1979, or 101, that is it.

I suggest that, although the amendment is not perfect, it is a reasonable attempt to put into understandable language the provisions that could trigger a general election, allowing for more than just the vote of no confidence but clearly defining it. As I have said to the Minister on more than one occasion, when one tries to codify convention it is exceptionally difficult. I say again, as I have said before, that I would rather that we were not having to engage in this exercise but the Commons has decreed it and we must try, according to our rights and our duties, to make the Bill better. I suggest that the proposed new clause would make it better than what exists already.

Of course, if the House decided to approve the proposed new clause that has been supported by the Minister, either amended or unamended, there would be no opportunity to test the opinion of the House on this alternative. I will hold my fire on any votes that might take place beforehand to see whether we have the opportunity to vote on this one. Whatever happens today, though, I feel extremely pleased that the Minister has listened carefully and there is going to be an improvement in the Bill, in whatever precise form it leaves this Chamber today. We now have to let the debate follow its course and see what happens. As I sit down, I commend to your Lordships the idea of having a clause that is as understandable and comprehensive as can reasonably be expected.

My Lords, I hope that the House will forgive me. I have to chair a committee upstairs at 4 pm so I rise perhaps a little prematurely to commend to your Lordships my Amendment 22ZB. The noble and learned Lord, Lord Falconer, has already described what the amendment is intended to do; I do not need to repeat that, as he did so better than I could do myself. It loses the Speaker and the 14 days. It lays down precisely what is to happen if there is a vote of no confidence, and lays upon the Prime Minister the first duty to seek a dissolution of Parliament in the event of a vote of no confidence being passed. It defines with clarity what shall be regarded as a vote of no confidence for the purpose of triggering that Motion. That seems to be clear, simple and practicable. I strongly commend it to your Lordships as a way of resolving these problems in a simple and clear way and establishing a sensible procedure for the duration of the Bill if it becomes an Act.

My Lords, I raise one question with my noble friend about his amendment. Under subsection (2)(a) of the proposed new clause, the Prime Minister would be bound to submit to Her Majesty a request for a proclamation leading to a general election if the Queen’s Speech had been rejected. Would not that go against what happened in 1924, when there was indeed a defeat on the Queen’s Speech, but one which had been expected, and an alternative Government was then appointed? Would it not be regrettable to make it inevitable that there should be a general election in a circumstance such as that?

Let me assist by saying that I think that the noble Lord is right. To add another prong to that argument, we have tabled an amendment to the amendment of the noble Lord, Lord Armstrong of Ilminster, which covers that precise position.

My Lords, my thought was that that sort of situation would be covered by the fact that the Prime Minister would be submitting a request for a Dissolution to Her Majesty. In all normal circumstances, of course, Her Majesty could act upon such a request. However, there could be circumstances in which Her Majesty might wish to say, “Before accepting this request, I wish to consider whether a Dissolution is the right course of action to pursue at this time”. She could then have consultations with political leaders to find out whether that is the case.

My Lords, it is a delight to follow a former chancellor of the University of Hull. I speak to my own Amendment 21, and also to all amendments in this group.

My starting point, like other noble Lords, is that all the amendments are an improvement on Clause 2. The clause seeks to translate a convention into statute, which is extremely difficult to do as my noble friend Lord Cormack mentioned, and is for that reason very rarely attempted. The Government rest on the confidence of the House of Commons. If that is withdrawn, the Prime Minister by convention has the option of resigning or seeking the Dissolution of Parliament. The circumstances in which the Commons can demonstrate a lack of confidence are varied, as the noble and learned Lord, Lord Falconer of Thornton, has quite clearly adumbrated.

As we have heard, Clause 2 seeks to maintain these conditions but, in so doing, requires the Speaker of the House of Commons to be custodian of our present understandings of the convention. As we heard in Committee, that puts the Speaker in an untenable situation, having to make a decision that may be highly contentious politically, potentially sealing the fate of the Government.

The alternative, therefore, is to move away from flexibility to certainty or some degree of certainty. All these amendments, as we have heard, seek to do that. The one that comes closest to maintaining the current conventions is Amendment 22ZB of the noble Lord, Lord Armstrong of Ilminster, in that it retains the power for the Prime Minister to designate any Motion as one on which defeat will be treated as a matter of confidence. The others are more restrictive.

It strikes me that there are four, not necessarily compatible, criteria by which we can assess the amendments before us. First, to what extent do they retain the existing conventions? As I have said, the amendment of the noble Lord, Lord Armstrong, comes closest, putting flesh on the bones of what Clause 2 seeks to achieve. If we wish to retain the flexibility of existing arrangements, that is the most desirable amendment. It does not replicate precisely the existing convention, as it precludes the option of resignation as an alternative to the Dissolution of Parliament, though in that respect it follows what has been recent practice.

My amendment is a close second in two respects. First, like Amendment 22ZB, it retains the capacity of the Prime Minister to move that the House has confidence in the Government. This enables the Government to seek the confidence of the House in the event of uncertainty, such as, for instance, following the loss of a vote on a major item of Government policy. Secondly, in the event of the House withdrawing its confidence in the Government, it retains the option, unlike Amendment 22ZB but in common with the other amendments, for an alternative Government to be formed without the need for an election.

As we have heard, all the amendments bar Amendment 22ZB include the 14-day provision. The noble and learned Lord, Lord Falconer of Thoroton, in his amendment seeks to remove that provision. I was not quite clear as to why, and certainly was not persuaded by the arguments he adduced in favour of removing that provision. If you remove it you create a problem, which he recognises by the tabling of Amendment 20C, which essentially corrects the problem created by his Amendment 20A, for which I do not see a particularly strong case in any event.

Secondly, do the amendments meet a test of certainty? In other words, are the conditions under which the Government are deemed to have lost the confidence of the House clear beyond peradventure? The existing clause clearly fails the test. All the amendments before us come close to meeting the test. As far as I can see, Amendments 20, 21 and 22ZA are sufficiently clear as not to require adjudication, thus eliminating the mischief inherent in the existing provisions of the clause. The only possible ambiguity in Amendment 22ZB rests in subsection (2)(d) in the form of the declaration made by the Prime Minister. Is it to be in writing and laid before the House? Is it to be made in advance of the vote on the Motion or before the Motion is debated?

Thirdly, do they cover all eventualities? The amendments of the noble Lords, Lord Howarth and Lord Armstrong, do not address what happens if the Government resign without having lost a Motion of confidence or an early election Motion being passed by a two-thirds majority. This is what may be called the Belgian question. If a Government fall apart and the Prime Minister tenders the resignation of the Government but under conditions where the Opposition are not ready for an election and cannot realistically form an Administration, what happens? The Bill makes no provision for such an eventuality. Subsection (3) of my amendment seeks to cover such a situation, as does my noble friend Lord Cormack in subsection (1)(b) of his amendment. My amendment provides that if, after 60 days, no Government have been formed an election shall take place. My noble friend provides a 14-day limit. I prescribe a substantial time to limit the opportunity for exploitation. A lot can happen in 60 days. However, for the moment, my argument is that we need to cover such an eventuality.

I appreciate the argument that has been advanced by the noble Lord, Lord Howarth, who argued that such a situation is so unlikely that the provision is likely never to be invoked. The same argument can be advanced in respect of the provision for an early election Motion. The circumstances in which one is likely to need and be able to mobilise a two-thirds majority or a unanimous vote are likely to be extremely rare. However, neither situation is impossible. It is possible for the House of Commons to fail to agree on any option, as happened in 2003 in the votes on the various options for the future of this House. It may, therefore, be desirable to cover all eventualities. In terms of covering all eventualities, subsection (1)(a) of Amendment 22ZA presupposes that the Motion will be passed on a Division. Subsection (1) of the amendment of the noble Lord, Lord Howarth, originally did likewise, but has now been changed to cover such a Motion being passed without a Division.

The amendments to Amendments 20 and 22ZB, tabled by the noble and learned Lord, Lord Falconer of Thoroton, seek to cover the situation following the meeting of a new Parliament and the Government’s losing a vote of confidence. I can see why his Amendment 22ZD is desirable but, as I have said, I cannot see the argument for why his earlier amendment is required.

Fourthly, do the amendments limit or eliminate the opportunity for the Government to engineer an early Dissolution for their political benefit? The purpose of the Bill, as we have heard, is to ensure that there are fixed terms and that there is an early Dissolution only in exceptional circumstances. Those circumstances do not include enabling the Government to trigger an election at a time that is politically beneficial. If they did, it would undermine the whole purpose of the Bill. I know that, as the noble and learned Lord has said, he would find that quite attractive.

Does the noble Lord recognise that there could be a legitimate concern since he provides that an early general election is also to take place if, on a specified date, the House of Commons has negatived a Motion that this House has confidence in Her Majesty’s Government? Does that not provide too tempting an avenue for the Prime Minister to contrive a vote of confidence, and to contrive to lose it? The noble Lord spoke earlier of the need to avoid exploitation; this is trying to do that.

The noble Lord anticipates what I am coming on to. That is what I want to deal with. That is my whole point about this question. I know that some noble Lords would find it attractive if we undermined the Bill in this respect. However, if we proceed on the basis of what the Bill seeks to achieve, we need to identify any provision that could be exploited by the Government. The amendment that comes closest to being foolproof in this respect is Amendment 20 in that, apart from an early election Motion, the only way to trigger an election is through the House passing a Motion of no confidence in the Government. As the noble Lord touched on, there is no provision for the Government to move a Motion of confidence and then invite their own supporters to vote against it, as has happened in Germany and could, as he says, happen under my amendment and that of the noble Lord, Lord Armstrong.

A Government could also trigger an election under Amendment 22ZB by the Prime Minister declaring any Motion one of confidence and ensuring that government MPs voted against it or stayed away to ensure that it was defeated. However, Amendment 20 is not completely foolproof. There is no restriction on who can table a Motion of no confidence. It could be tabled by a government Back-Bencher, possibly at the behest of the Prime Minister, thus enabling the Government to engineer their own defeat. The amendment of my noble friend Lord Cormack provides that a Motion of no confidence may be moved only by the Leader of the Opposition. That may be deemed unduly restrictive, but it prevents the provision being used by the Government for their own benefit—the very point that the noble Lord, Lord Howarth, mentioned.

However, although my noble friend’s amendment deals with what some may see as a loophole, it introduces a loophole of its own. Under subsection (1)(b), a Prime Minister could simply resign, and, if the Opposition take over, move a vote of no confidence—the outgoing Prime Minister presumably assuming the mantle of Leader of the Opposition—or deny them the opportunity to govern by voting down whatever they bring forward.

In short, each amendment has its merits, though none is ideal in terms of the criteria that I have adumbrated. That is more or less bound to be the case given that the criteria are not necessarily compatible. We are moving away from seeking to retain the existing conventions in favour of greater certainty.

My amendment seeks to provide for all, or at least more, eventualities than that covered by the amendment in the name of the noble Lord, Lord Howarth, and to enable the Government to seek the confidence of the House. As I say, I appreciate that may be open to abuse by a Prime Minister, but the risk has to be offset against the value of retaining the existing practice.

I commend my amendment to the House but do so in the recognition that the ideal may not be one of these amendments but one drawn from what is before us. The amendment in the name of the noble Lord, Lord Howarth, to which my noble and learned friend the Minister has added his name, is certainly a massive improvement on what is in the Bill. We may be able to tweak it further, but our deliberations on the clause show what can be achieved through debate and constructive discourse. If we are not quite there, we are very close.

My Lords, it may assist the House if I clarify the procedural position once more as I think that a little confusion may have arisen. I make it clear that although we are having a debate on all the potential alternative new clauses, some of them with and some without amendment, they are alternatives and no issue of pre-emption arises. Therefore, it is possible for the House to take a series of decisions about individual amendments as they arise in the schedule. Some noble Lords may not have been certain about their alternatives after a decision had been taken on the first proposed new clause. I hope that might be of some assistance.

My Lords, having heard that, I hope that I am now in order in rising to support the amendment, so ably moved by the noble Lord, Lord Howarth.

I begin by making the point that the removal of the Speaker’s certificate as a requisite for calling an early general election certainly meets my principal objection to the original wording in Clause 2. I take this opportunity to thank the Minister, the noble and learned Lord, Lord Wallace, and the Government for accepting the need to safeguard the non-partisan position of the Speaker in their proposed legislation. I think that the noble and learned Lord realises that I should have liked them to have gone a little further on this clause, but I would not push my luck in such circumstances, and I am thankful for small mercies.

I hope that all parties in the other place will take the opportunity, when the Bill returns to the Commons, to place on record the importance of a Speaker’s independence and never again put it at risk, as did the original clause. It gives me particular satisfaction to know that some of us were able to use our membership of this House to help remove a defect in the Bill that, to put it perfectly bluntly, should have been corrected in the other place—the elected Chamber. It proves, yet again, the indispensible role that your Lordships play in the legislative process, particularly in constitutional matters.

We have talked about perfection, and I regret that the amendment is not as precise or as perfect as I would wish. That is life. However, when considered along with other amendments, it is a reasonable way forward and we can make the best of what I regard as a poor and unnecessary item of legislation.

I wish to place my view on record in relation to the leeway, or what I call the 14-day cooling-off period, following a vote of no confidence, to give time to the Executive to cobble together and approve a new Government. That requirement in the Bill strikes at the very roots of my belief in the way our democracy works. For reasons that we all understand, we have a coalition Government who govern on the basis of a two-party agreement. I have no quarrel with that. I accept the need for coalitions when no party has an overall majority. Nor am I opposed to the principle of self-preservation—I practise it myself. However, if the Government were to lose the confidence of the Commons, this legislation would allow a different coalition, a coalition mark II, to replace it after 14 days of hard bargaining, wheeler-dealing or horse trading—call it what you want—without reference to the electorate by calling an election. That is wrong.

In that event, the Bill would be seen as the “elections avoidance Act”—and rightly so. Some might call it a “fixed Parliaments Act”—using “fixed” in its pejorative sense. I confess to belonging to the school of democrats who believe in the unfettered right of the Commons to send a Government packing, as it did in 1979, and in the integrity of the Prime Minister to come to the Dispatch Box to say what he would do. I also believe in the sovereign right of the people of this country to elect their Governments at elections. I maintain that these two rights are not incompatible and we should not tamper with them. They have served us well and are the basis of our parliamentary democracy.

This time, the Commons is the target of the constitutional meddlers. However, proposals for the abolition of this House will soon be put before us. The bottom line of my concern now is that the legislation restricts the traditional freedom of the elected Chamber to get rid of a failed Government and for a Prime Minister to go to the country to seek a mandate. Snap elections have become a derogatory term in some quarters. Many countries that I know are under the yoke of dictators and would love to hold a snap election. I would rather have a snap election at any time than a Parliament that is well and truly fixed in the way that many are and in the manner now proposed by this coalition.

My Lords, I have listened with great interest to people who have a great deal more experience and expertise in this matter than I, and I think that we are gradually moving towards a very sensible conclusion. On all sides of the House, we need to express our thanks to my noble and learned friend Lord Wallace of Tankerness, whose personal intervention has moved us in a sensible direction. That is evidence, contrary to what was being said at earlier stages of the consideration of the Bill, that the Government are listening to your Lordships' House and have moved.

However, it is equally true, and I commend it for this, that the coalition has not been prepared to accept wrecking tactics which would undo what is, after all, a Bill which came to your Lordships' House from the other place, which, as we have already heard this afternoon, we all regard as retaining primacy in our parliamentary system. I very much welcome the constructive dialogue that has taken place during the interval between different stages of the Bill. One of the most important points that has arisen since we were discussing this last week is an emphasis on simplicity. Several colleagues on all sides of the House said that that is an important part of how we can improve legislation. Frankly, on that ground alone, the Government may well be fully justified in seeking to reverse the amendment passed on such a narrow majority last week, because it adds a whole new layer of unnecessary complexity.

By contrast, Amendment 20 has clearly benefited from the experience of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—two distinguished former Speakers—among others. The noble Lord, Lord Norton of Louth, was generous in saying that it seems to meet many of his criteria. I think that his phrase was that it was the nearest to being completely foolproof of the amendments before us. The simplification of Clause 2 also certainly meets the major anxieties that my noble friends Lord Rennard, Lord Marks and I had over the rather cumbersome process originally set out.

At this point, it is important to emphasise that the sole purpose of the legislation is to give new responsibility, new power to Parliament, rather than to reinforce the current opportunity of the Prime Minister of the day—who is, after all, a party leader; we should never forget that—to pick and choose the most favourable date for an election for his or her party. There was some confusion last week on that point. By legislating for a parliamentary safety valve to enable an early election to take place within the normal five-year period, the Government are right to insist that that must be on the basis of cross-party support in the House of Commons. We should not revert to a No. 10 partisan fix.

It is important for us all to recall that we do not elect Governments in this country. The noble Baroness, Lady Boothroyd, perhaps led us slightly astray on that point. We elect Parliament, which then gives or takes away confidence from an Administration. Therefore, the simple decision of the head of a Government that he or she can no longer continue personally to lead a Government is not the critical issue. The critical issue is: what is the decision of our Parliament and, in this case, the primary House, the House of Commons?

Last week, there was some anxiety—some amusement, in fact—about the special circumstances of October 1974 and May 1979 and the fact that such circumstances might not provide a proper opportunity for an early general election and for the people to speak. I am delighted to see the noble Lord, Lord Grocott, in his place; he should be reassured. If the Bill had reached the statute book then, I am convinced that an early general election would almost certainly have been triggered by the House of Commons in those circumstances. He would have been elected and I would have been unelected. I think that the Bill proves able to deal with the circumstances we were discussing last week.

I was not intending to speak but it is just too tempting. I am delighted to hear that the noble Lord, Lord Tyler, thinks that a key determinant of our constitutional arrangements should be simplicity and simple solutions. That is slightly ironic coming from someone who spent several months arguing for the alternative vote system but that is now behind us. I merely put it to him: is not the simplest proposition of the lot for Governments who have lost the confidence of the House of Commons by a majority of one—a simple majority—to go immediately to the country without this 14-day formulation?

No, my Lords; I think that that is over-simple. It does not give the House of Commons a proper, responsible role and I think that there would be circumstances in which it certainly would not be appropriate.

Would not the circumstances where it would not be appropriate, to which my noble friend has just referred, almost certainly be coalition circumstances? Is not the real fear of many of us that the Bill has been designed to perpetuate the opportunity of coalition? Would not the public have the right to feel cheated if, as I devoutly hope does not happen, the present coalition collapsed and the leaders of the Liberal Democrat Party and the Labour Party sought to form a pact and a Government—a Government who would certainly not have commanded the support of the majority of the country last year? Do we not have to bear that in mind? Has not this been devised in a coalition climate to perpetuate a coalition climate?

I can only say to my noble friend that I was advancing the case for precisely this legislation long before there was ever the possibility of a coalition. It is extremely important to come back to my absolute core principle that the arithmetic of the House of Commons should be of issue. If, for example, the circumstances to which my noble friend refers occurred and there were in the House of Commons a solid majority for a change of Government in the midst of the present economic crisis, in order for that change of Government to take place without a general election it would be the House of Commons that decided whether the Government had the confidence to continue. Therefore, I do not think that that circumstance is an appropriate or proper reason for changing Amendment 20, which I think would be a useful amendment to the Bill.

The Bill recognises that, if it were acceptable or even necessary to call an early general election, the final decision should be left to Parliament and not to the individual whim of one party leader who happened to occupy No. 10. Even if there were not near unanimity among MPs, the safeguards in the Bill would ensure that, in the circumstances I have described, a vote of no confidence would lead to an early poll once it became clear that no alternative Government could be established and enjoy the confidence of the House of Commons. Amendment 20 deals very well with this problem. It deals with the questions that were raised last week, although clearly some people on that occasion and now might say, “Well, we know what a Motion of no confidence looks like when we see it”. Frankly, I think that the amendment deals with the problem of definition rather better than that.

I think it was my noble friend Lord Forsyth who made the point that in almost all the circumstances that have been described—defeat on a Finance Bill or some big issue of that sort—the leader of the Opposition would be likely immediately to table a Motion of no confidence in the Government. Therefore, to some extent, the suggestions that have come from other parts of the House may be superfluous. I and my colleagues tabled a probing amendment suggesting that such a Motion should always be in the name of the leader of the Opposition, which would reflect that point, but in the real world that will almost always be the person who tables the Motion.

The Government have moved substantially and my noble friend has put his name to Amendment 20. I think that the very serious problems enunciated earlier by previous Speakers of the other place have been dealt with, and removing the Speaker from a potentially very invidious position is very important.

I turn to the other amendments briefly because I suspect that they are not going to be pursued with quite the same enthusiasm as Amendment 20. The amendment in the name of my noble friends Lord Cormack and Lord Hamilton seems largely to enshrine the status quo. However, I do not think that the status quo is acceptable, as it involves all sorts of problems. I suggest that under their amendment a Prime Minister, instead of simply going to the Palace, as now, could engineer a vote of no confidence and therefore cut and run for an early election, which would destroy one of the major objectives of the Bill.

The proposal maintains the unfair partisan advantage conferred on one party leader as opposed to another. It is remarkable that when faced with the prospect of the first Prime Minister in history prepared to give up this important power to Parliament there seem to be some people in your Lordships’ House who say, “We do not want to be given this power. We would rather you kept it, Prime Minister. We do not want the responsibility”. I think that that would be a retrograde step.

The issue is also present in Amendment 22ZB in the name of the noble Lord, Lord Armstrong, who has explained why he is not able to be here. Amendment 22ZB contains an extraordinary provision that any vote deemed a vote of no confidence by the Prime Minister, and party leader, should be a vote of no confidence. Rightly, the Bill and, indeed, Amendment 20 seek to avoid that. Those in your Lordships’ House who lived through the Maastricht debates in the other place, particularly former Conservative MPs, will remember the pressure that was brought to bear night after night by the Whips threatening that it could be deemed a Motion of confidence that could bring the Government down and trigger an immediate general election. MPs should have the capacity to vote down the details of legislation they disapprove of without being pressurised by a Government trying to force them to take a view that is not truly theirs. I fear that Amendment 22ZB could be defective for that reason, if for no other.

There is a definite problem with that amendment since it might well be open to judicial challenge. The judicial challenge to the role of the Speaker would be very difficult but when the head of the Executive takes a decision, I think a judicial review might well be a prospect that we would have to face. I mentioned that in Committee previously and a number of Members of your Lordships’ House, who are much more learned in the literal sense than me, seemed to agree with that. There is also an implication for Clause 3 and the issue of how a Dissolution should take place in the amendment of the noble Lord, Lord Armstrong.

I am slightly baffled by the amendments in the name of Members of the Labour Party and the noble and learned Lord, Lord Falconer. I may just be being stupid but it seems to me that perhaps quite a major constitutional change is in prospect. The burden of their amendments seems to be that when a Government are newly elected—or, strictly, a Parliament—some special mechanism should be introduced in the days following the election.

I can assure the noble Lord that he is not being stupid. It is my failure for not explaining it adequately. Where there has just been a general election and a Government do not obtain the confidence of the House, the right course in those special circumstances, as in the case of Mr Baldwin in 1923, is that what the electorate may well have wanted from the election is somebody other than, as it were, Mr Baldwin. That is why those amendments are there.

That is a very interesting point and I shall contemplate it.

I come to another point. It would seem that the noble and learned Lord has a problem with the two-week thought process—the cooling off period that the noble Baroness referred to. I would like to know whether he stands by the statement by Mr Christopher Bryant in the other House, who said:

“We quite like the provision for two weeks—it seems sensible if an alternative coalition or Government could be formed”.—[Official Report, Commons, 24/11/10; col. 361.]

He also said:

“The Government—I think rightly—want to say that after a motion of no confidence, there could be two weeks during which the House could, if it wanted, pass a motion of confidence in either the same Government, presumably, or another Government, with either the same Prime Minister or a different Prime Minister, with a different set of ministerial colleagues”.—[Official Report, Commons, 24/11/10; col. 359.]

That flexibility was very admirable and a great deal more supportive, if I may say so, of the Government’s position than would be implied by what the noble and learned Lord, Lord Falconer of Thoroton, has said. It may be that he or one of his noble friends may wish to come back and say whether Mr Bryant was misled, or whether I was misled by that interpretation.

Amendments 20C and 22ZD have so many negatives that I am in something of a spin, even after the noble and learned Lord, Lord Falconer, explained them to me. If the intention is to make a major change in the circumstances immediately following an election, there is a good case for that: it is a very attractive proposition. The fact that the leader of the party who seeks to form an Administration should bring both the Administration and his or her programme to the House of Commons for it to be endorsed at the outset of a Parliament would emphasise that we are not electing a Government but a House of Commons, which in turn gives responsibility and power to a Government. However, it may be rather too late in the passage of this Bill to introduce changes of that scale and radical intent.

The noble Lord, Lord Norton, as usual gave us a very interesting attempt to define and pin down the issues, but I think that he conceded that Amendment 20 may be the right way ahead.

We have made huge progress. As others have said, this is very much to the credit of my noble and learned friend, Lord Wallace of Tankerness. Again, it illustrates some very important points that we should all take account of. First and foremost, we have maintained intact the principle of the Bill that was sent to us by the other House. Secondly, if we pass the amendment and introduce a new Clause 2, that will remove any possibility of any weakening of the neutrality of Speakers of the House of Commons. That is obviously desirable. Thirdly, it still removes an important extra power from Prime Ministers and their Whips simply to decide that an issue of detailed policy is a matter of confidence. All three of these achievements are truly welcome. I hope that the House will support Amendment 20.

My Lords, the House has been very generous in its consideration of the report of the Select Committee on the Constitution, which I have the privilege to chair. However, one aspect of our report has received scant attention, although the noble Lord, Lord Tyler, referred to it briefly. That is the question, also mentioned by the noble Lord, Lord Norton of Louth, of government manipulation of the no-confidence process.

Having looked at all the amendments that have been tabled, I recognise, as do all noble Lords, that they are a vast improvement on what we were considering last week. However, it does not seem to me that these problems are met. I refer the House to the discussions that the committee had on this point with the Deputy Prime Minister. He accepted that it was not possible to exclude the possibility that the Government could manipulate Motions to this effect, but went on to say that,

“if a Government sought to do that it would be so transparent and so self-evidently grubby and self-serving that it would not do that Government any good at all”.

He assumed that if a Government manipulated the process in that way, they would be punished. However, the committee held evidence that suggested that international experience does not necessarily confirm that impression. The noble Lord, Lord Norton of Louth, referred to examples from both Canada and Germany of occasions where Governments achieved precisely that purpose by manipulating votes of no confidence in themselves. Our evidence suggested that scrutiny of those decisions and subsequent elections that happened as a result of them did not necessarily produce an electorate who thought that this was, as the Deputy Prime Minister said, so “self-evidently grubby” that the Government should be punished. In both the most recent cases, in 2005 and 2008, in Germany and Canada, the Governments who behaved in this way were re-elected.

The House may feel that this is too small a point to consider at this stage of proceedings. However, if we are in the business, as everybody has suggested, of improving the amendments that were before us and putting into statute something that we have always understood in this country and in the history of Parliament to be a matter of conventions, we need to be very careful about this matter.

My Lords, I support—along with everyone else—Amendment 20 and a new Clause 2. I put on record my thanks to the noble and learned Lord, Lord Wallace, and to Mr Mark Harper, the Minister in charge in the other place. We said in Committee that we would like to meet the Minister, and it was good of him to meet us. I also put on record the great work done by the noble Lord, Lord Howarth. In these situations, there is always someone who has to do the phoning, the texting and the e-mails, and it was the noble Lord. I am very grateful to him for keeping me and my colleagues fully informed.

I am glad that the pressure has been taken away from the Speaker. Things have changed, and if the certificate has to be issued by the Speaker—unless we pass this amendment, it will have to be—there is the new dimension. When there was a majority Government, the Speaker would have to look at what the Prime Minister said. If the Prime Minister said, “I consider this vote on the Floor of the House to be a vote of confidence in me”, he would be one person alone that the Speaker would have to look to. However, where we have a coalition, the Speaker would have to look not only to the Prime Minister, but to the Deputy Prime Minister. If the Deputy Prime Minister said that he considered a forthcoming vote to be a vote of no confidence, the Speaker would have to look at that. I am glad that that pressure will be taken away because there is no doubt that things have changed as far as Speakers are concerned.

I had great affection for the late Edward Heath. He used to come and see me up in Speaker’s House. We would have tea and a chat about old times. He used to reminisce about when he was Chief Whip. I thought that I had better ask him about my situation. I said: “The government Chief Whip comes to see me on a weekly basis, as does the opposition Chief Whip, and every second week the Liberal party Chief Whip comes. Did you have that in your day?”. He said: “We didn’t bother the Speaker. The Speaker was too busy for those things”. That indicated that a change took place between the 1960s and today so that Whips now come to see the Speaker on a weekly basis. I can tell noble Lords that they were always moaning. They were never happy. They were like constituents at tenants’ association meetings. You always knew that they would have a complaint. At least, if the government Chief Whip was happy, you could bet your boots that there was something wrong with the opposition Chief Whip. All these pressures have been taken away by what we have before us, and I am very pleased about that.

My Lords, I rise with some trepidation after so many distinguished noble Lords. The first thing I want to do is to thank, like so many other noble Lords, my noble and learned friend Lord Wallace of Tankerness for his care, consideration and courtesy in dealing with various issues that I have raised with him. I have been able to support the Bill because of the two great principles of certainty and stability which it enshrines, but there is a third leg of that constitutional stool, which is simplicity, as my noble friend Lord Cormack, pointed out earlier.

As the noble Baroness, Lady Boothroyd, explained, there is a problem with the 14-day cooling-off period. It is in danger of failing those three fundamental principles. Let me briefly take the example of 1977-79, which some of us remember so well. Those years showed the best and worst of our current system. The best was that it allowed sufficient flexibility for the formation of the Lib-Lab pact—before my noble friends begin to swoon in surprise, I emphasise that I do not hold the Lib-Lab pact as the best example of government, or even a good example of government, merely a flexible example.

How flexible our current system was became even clearer after that when the Liberals withdrew and everyone from Bill Brewer to Uncle Tom Cobbleigh got in on the act. That was the worst of the current system. Deals were done—not just with the Liberal Party, but with Ulster Unionists, Scottish nationalists, Welsh nationalists and even Irish republicans. Goodness’ knows what would have happened if UKIP had been present there. Offers and inducements were made, from extra parliamentary seats to expensive pipelines to promises on devolution—even, I understand, to the occasional odd bottle of Scotch. The only reason why some of us can smile about it is because it was so very long ago.

The country was rescued from that misery by a vote of no confidence. Every man and woman in the other place that night understood precisely what that vote entailed. If the Government lost, they would fall. The stakes were extraordinarily high: so high that some Members clambered from their sick beds to get into ambulances and make that long haul to New Palace Yard—simply in order to be nodded through. A few, I believe, put their lives on the line simply in order to do that duty. How could we countenance a system which, after such an effort and such a sacrifice, responded by saying, “Thank you, but now you have another 14 days to cool off, to change your mind”? Fourteen days of dodgy deals, 14 days of pipelines and parliamentary fixes, 14 days to deny the electorate their right to decide—and every bit of it enshrined in law. Far from the Prime Minister giving up his powers to Parliament—

My Lords, the convention is that if the Government lose a vote of confidence in the House of Commons, the Prime Minister has the option of either requesting a Dissolution or resigning. Callaghan did not have to go to the palace: he could have chosen to resign.

Yes, indeed. I shall try to deal with that issue in a second.

Far from the Prime Minister giving up his powers to Parliament and the people in these provisions, he would be handing them over to party bosses operating in back rooms. I have been there and I have been one of them, and I doubt if things would become any more fragrant simply because those back rooms are no longer filled with smoke. Let us go back to something like 1979. Imagine the haggling: “No, I won’t vote for you, Jim, because if I help defeat you on this no-confidence Motion, I will be able to squeeze even more out of you tomorrow”.

A no-confidence Motion should be more than simply a hand at poker, with players raising the stakes both before and after the vote. Like the noble Baroness, Lady Boothroyd, I fear that Clause 2 as drafted would allow just that—with the players pleading that haggling is precisely what the law allows, precisely what the law approves of. Fourteen days of it: crisis, what crisis? But that is not what anyone here wants, so I urge my noble and learned friend Lord Wallace to look at this yet again. If he feels he must codify this matter of no-confidence Motions, he should ensure that this part of the Bill is made more clear. I am not against safety valves, not against 14 days in all circumstances. But 14 days should not be so inflexible that it becomes a charter for chaos and an excuse for political fixes. What we do today in good faith must not become an excuse for excess at some future date.

My Lords, I begin by thanking all noble Lords who have taken part in this debate—not just for their contributions to the debate on the Floor of your Lordships’ Chamber today but for all their comments and amendments, which have reflected a view to try to find a way forward. As I indicated originally at Second Reading, and certainly in Committee, the Government were willing to listen to the views of your Lordships’ House. In the debate on Second Reading, I think it was the noble Baroness, Lady Jay, who mentioned that you could have absolutely rigid fixed terms or the complete flexibility that we have at the moment. The rigid fixed term brings its own set of difficulties, but if you are going to have something less rigid, you have to have the mechanisms in place to provide for an early election. That is what we grappled with during our deliberations in Committee and has been reflected in our debate today.

Amendment 20 was tabled by the noble Lord, Lord Howarth, with the support of the noble Lords, Lord Martin and Lord Pannick, and the noble Baroness, Lady Boothroyd. It sets out an alternative version of Clause 2 and addresses a number of issues of concern, not least the Speaker’s certificate and the certainty of the wording of a Motion of no confidence, both of which were raised in Committee. I am particularly grateful for the constructive way forward that has been devised by those who I know do not like the idea of fixed-term Parliaments but who nevertheless have accepted that the role of this House is to improve and revise and to bring forward amendments in that spirit. I was pleased to be able to consult not only the noble Lords, Lord Howarth and Lord Pannick, but particularly with the two former Speakers. This House has had the advantage of having their experience related to us both in Committee and in the debate this afternoon. On that basis, I have been willing to add my name in support of the amendment on behalf of the Government.

The amendment would retain the two triggers for an early general election and has clarified what a Motion of no confidence should say, and in that regard would not require a Speaker’s certificate. There was also a suggestion in an earlier iteration of the amendment that perhaps there should be some reference to the journal. Having considered it, we did not think that was appropriate either because it might then reflect other things in the journal that would be somewhat undermined by making it specific in this one. I think that that consultation bore fruit. We certainly have no desire to draw the Speaker of the House of Commons into political controversy, and therefore, given that the architecture for an early election is drawn up with a degree of certainty with no need of a Speaker’s certificate, the Government are willing to support the amendment.

I will come back to the amendments to this amendment that were moved by the noble and learned Lord, Lord Falconer of Thoroton, because they raise issues that were raised by other noble Lords, but first it is important that I should address the points made by noble Lords in speaking to their amendments in the group.

Amendment 21, tabled by my noble friend Lord Norton, again would provide an alternative version of Clause 2 and retains some of the basic architecture. It sets out a mechanism to allow for an early general election in the event of a two-thirds majority on a Motion, and one to provide for an early election in the event that the Government lose the confidence of the other place and no Government who hold the confidence of the House are formed within 14 days. Having listened to the concerns expressed in this House, it is clear that there is a certain shared sense of the direction in which we have been moving. However, my noble friend seeks to provide that the failure to pass a Motion of confidence in the Government—an important distinction—should have the same effect as passing a Motion of no confidence.

Following on the specific points made about this in the Constitution Committee’s report, we certainly did reflect on this long and hard. The reason why we came down against it in the end has been anticipated by my noble friend. It is that one of the objectives is to try to minimise the opportunity for manipulation. I accept, as the noble Baroness, Lady Jay, has indicated the Deputy Prime Minister has accepted, that there is no way this is going to be foolproof, but there are some things you can do to make it more difficult. We have reached the judgment that a Motion of confidence would be easier for the Government of the day to table and then have voted down than for the Government to lose a Motion of no confidence. The noble Baroness also mentioned Germany in 2005. The position there was that there was a general consensus for an election but that they did not have a trigger mechanism to do so. However, we do provide for it where there is consensus for a Dissolution that is supported by a two-thirds majority of Members of Parliament.

My noble friend Lord Norton wishes to add a third mechanism leading to an early general election. Where a Prime Minister felt unable to continue in government, his or her resignation could bring about an early election. The Bill does not prevent a Prime Minister from resigning or tendering a resignation on behalf of the Government, but, under the Bill as it stands, an early election would not follow automatically. As I have indicated, should there be a consensus that an early election should take place, the Bill provides for this under a two-thirds Dissolution vote. However, if there is no consensus, the alternative provision—for a no-confidence vote followed by a period of 14 days’ government formation—prevents a situation in which a Government stagger on without the confidence of the House.

My noble friend has suggested a government formation period of 60 days following the Prime Minister tendering the resignation of the Government. That could undermine the principle of fixed-term Parliaments by allowing the Prime Minister to trigger the government formation period at any stage in the Parliament. If one is looking at ways of minimising the opportunity for manipulation, that is one reason why we would not wish to go down that road. I also believe that 60 days is too long a period for there to be no effective Government in place. I hope that on reflection my noble friend will not—I think he indicated that he had some sympathy for the amendment tabled by the noble Lord, Lord Howarth—press his amendment.

The amendment tabled by my noble friend Lord Cormack and supported by my noble friend Lord Hamilton of Epsom is a further variation that suggests the exact wording of the Dissolution Motion and frames the 14-day government formation period in a different way from that proposed in the Bill. It provides for two scenarios that would determine a Motion of no confidence. Where a no-confidence Motion is passed in those circumstances, the Prime Minister must request Her Majesty to dissolve Parliament.

There may be circumstances in which, within a fixed-term period, a viable, legitimate Government may be formed from the composition of the House after a no-confidence Motion. As my noble friend Lord Tyler reminded us, it is Parliament that is fixed; it is not the Government who are intended to be fixed by the legislation. The Government can exist only if they enjoy the confidence of the other place. That is why Clause 2 provides for a vote of no confidence to trigger a period of 14 days for possible government formation. If the Government have not been able to secure the confidence of the House of Commons, Parliament will be dissolved. At present, the Prime Minister decides whether, after the loss of confidence, to ask Her Majesty for Dissolution, as in 1979, or, as my noble friend Lord Norton pointed out, to resign, thereby creating the opportunity for another Government to be formed from the existing House, as in 1924.

I know that the Minister is trying very hard, but some of us remain very concerned about this 14-day haggle period, as I would call it. Would he be prepared to insert at Third Reading, “a maximum of 14 days”?

My Lords, I am not sure that it is necessary to insert “maximum”. Perhaps I can assure my noble friend that 14 days is a limit; it is not an expectation or a requirement. Let us take as an example the situation in 1979, after Mr James Callaghan was defeated on that famous evening in March. If, rather than saying, under existing constitutional arrangements, that he was going to the Queen to seek Dissolution and take his case to the country, he had said that he would table a Motion for Dissolution the following day and that if it was supported, as inevitably it would have been, by both parties and had two-thirds of Members voting for it, there would have been no need to wait for 14 days before the election took place. The noble and learned Lord, Lord Falconer, looks perplexed by that. Mr Callaghan could have tabled a Motion for Dissolution the following day and two-thirds of Members could have agreed.

In these circumstances, yes. Had this Bill been in place, that could have happened. Perhaps I may reassure my noble friend Lord Cormack that 14 days is a maximum, but if there is consensus in the House that there should be an immediate election, it would be possible the following day for a Motion commanding the support of two-thirds of Members for an early election to be passed and there would be no need to wait for 14 days. I hope that is clear. It is an important point that perhaps has not always been fully appreciated; there may have been an impression that after every Motion of no confidence there would have to be a period of 14 days before there could be an election.

The proposed new power in the amendment for the other place to vote explicitly for an early Dissolution deals with the circumstances in which it would be appropriate to move directly to a Dissolution and a general election, as I have said, and there may be other circumstances. There has been some suggestion that the situation in 1951 could have led to that happening.

My noble friend also proposes that an early general election should be called if the Prime Minister tenders the resignation of the Government to Her Majesty and if within 14 days no new Prime Minister has accepted Her Majesty’s invitation to form a Government. Therefore, my noble friend’s amendment would still provide for an alternative Government to be formed without a general election taking place. The difference is that my noble friend’s amendment would provide that a Prime Minister’s decision to resign can trigger an early election, whereas the triggers that we are proposing involve a parliamentary procedure and deny, as far as is possible, the Prime Minister’s ability to trigger a Dissolution against the will of Parliament. Under my noble friend’s amendment it would also be possible for a Prime Minister enjoying a working majority in the other place to resign, sit out the 14 days and perhaps try to thwart the creation of another Government. We fear that that could, inadvertently perhaps, bring the sovereign into an unintended and undesirable political conflict.

Given that there is agreement to the trigger for an early election, with two-thirds voting, and my assurance that 14 days is the maximum, I hope my noble friend will be willing to withdraw his amendment.

The amendment in the name of the noble Lord, Lord Armstrong, provides yet another model. His amendment would provide that a vote of no confidence in the Government should lead to an immediate Dissolution, and some of the comments I have already made apply to that situation. Another problem is that the only person who might have the authority to make a judgment on the fourth prong of the amendment—where the Prime Minister deemed a particular Motion to be a Motion of confidence—would be the Prime Minister. That would hand back to the Prime Minister one of the weapons that the Bill takes away from the Prime Minister. It has uncertainty attached to it and, although there is no provision in the Bill for a Speaker’s certificate, some form would be needed to establish the intent and will of the Prime Minister. It could take us back into areas of legal analysis and questioning that we have tried to avoid.

The amendment would also provide that if any of the Motions set out in the clause were passed, the Prime Minister would have to seek Dissolution. That is what happened in 1979 but it is not what happened in 1924, as the noble Lord, Lord Butler, noted. The answer given by the noble Lord, Lord Armstrong, does not meet that point because, again, it raises the question of bringing the monarch into a politically charged situation. Also, under Clause 3, the prerogative power of Dissolution is being removed and it is not clear how that situation would be dealt with. By leaving it up to the Prime Minister to decide whether any vote should be taken on a matter of confidence, the amendment would allow the Prime Minister to bring pressure to bear on Back-Benchers, a point made by my noble friend Lord Tyler. In a Bill that seeks to take power from the Prime Minister and give it to Parliament, a provision that would increase the power of the Prime Minister vis-à-vis his Back-Benchers does not sit easily. The Government believe that the amendment would, in practice, hand straight back to the Prime Minister the power to decide when to precipitate a general election. The noble Lord, Lord Armstrong, is not in his place—he is chairing a committee—but, in those circumstances, I hope he will reconsider and withdraw his amendment.

The amendments tabled by the noble and learned Lord, Lord Falconer of Thoroton, seek, as I understand them—as with the amendments of the noble Lords, Lord Armstrong and Lord Howarth—to do away with the 14 days except where a Government have not enjoyed the confidence of the House to start with. They help to focus the issue.

In bringing forward this Bill, the Government have sought to recognise the many conventions that exist. We have sought to recognise that, in triggering an early election, we respect the two consequences which convention has it flow from a defeat by the Government on a Motion of no confidence in the House of Commons. The first is that there could be a Dissolution and the second that a new Government could be formed. The occasion in 1979 is an example of when there was a Dissolution and the one in 1924 an example of when a new Government were formed. I accept that the noble Lord’s amendment seeks to deal with the situation in which the Government have been defeated in the very early days of the Parliament.

It is important to remind ourselves that it is not just the Government who are saying that this is the position. In evidence to your Lordships' Constitution Committee, Professor Vernon Bogdanor, who is no fan of this Bill, said in response to a question from the noble and learned Lord, Lord Goldsmith, on 27 October:

“Under the current situation, it is possible for an alternative government to be found in those circumstances”.

That is, when there has been a vote of no confidence. He went on to say:

“That happened in 1924, when the first MacDonald minority Labour Government were defeated”.

That is, not when Mr Baldwin’s Government were defeated but subsequently in 1924 when the minority Labour Government were defeated. Professor Bogdanor went on:

“The King's private secretary enquired of the other parliamentary leaders whether they were prepared to form a government and only when he was told that they weren't was a dissolution granted. If one of them had been, that alternative would have been perfectly possible under our present constitution”.

We seek to maintain what is possible under the present constitution and indeed put a limit on it, because there is a limit of a maximum of 14 days to try to reform a Government. It is important that we try to maintain the existing constitutional conventions. By providing that a no-confidence Motion leads to an immediate general election in all other circumstances, we would be enshrining in statute the Executive’s ability to trigger an early election, if one follows the amendment moved by the noble and learned Lord. That is complicated. In Committee, he said that he was against complication, but he seems to be complicating the matter even further if in some circumstances the 14 days would apply and in other circumstances it would not.

As my noble friend Lord Tyler pointed out, this was not the position adopted by the noble and learned Lord’s honourable and right honourable friends in the other place, where Mr Bryant said:

“We quite like the provision for two weeks—it seems sensible if an alternative coalition or Government could be formed”.—[Official Report, Commons, 24/11/10; col. 361.]

Indeed, I think I am right in saying that an amendment to do otherwise—to take out the 14 days—was defeated by six votes to 498.

I fear that the noble and learned Lord’s amendment could undermine the purpose of the Bill. He said at Second Reading that we should try to minimise the opportunity for manipulation. By going straight to Dissolution, you make manipulation a bit easier than if you have the 14-day provision for an alternative Government to be formed. In these circumstances, having reflected on what has been said in discussion in Committee and in today’s debate, I very much hope that your Lordships will support unamended the amendment moved by the noble Lord, Lord Howarth of Newport.

My Lords, it has been a very important debate. It is absolutely clear what the critical issue is in the debate—the 14 days. As ever, the noble Baroness, Lady Boothroyd, expressed our constitution exactly accurately when she said that the Commons should be able to boot out the Government and the electorate should then determine who should be the Government. Under what this Bill proposes—the 14 days—when the Commons told Mr James Callaghan that he had to go to the country he could have said, although of course he did not, “Hold on a minute, I’ll see if I can get some Ulster Unionist support or some support from these rebels and see if I can hold on for a few more months”. That would have been absolutely contrary to the basic principles of our constitution which the noble and learned Lord says he wants to reflect in this new Bill.

The genesis of this Bill, if we believe Mr Nicholas Clegg—and we do believe him on this—came from his wanting to increase confidence in politicians and in Parliament. He said that one way in which it could be done would be by the public having more control over politicians. It is hard to imagine anything undermining confidence in politicians more than a situation such as the one at the beginning of 1979 when the Government were defeated, which has been described, and the Government then seeking to put together something to allow them to hold on between March and October 1979. That would, I suspect, have made the public feel that the politicians wished to hold on to power for longer. Not only does that 14-day period mean that that would be possible; it requires, in effect, that that period should be gone through.

We on the Labour side have had no part to play in putting together the variety of amendments that have been put down. I have discussed them with various people but they have, in effect, been tabled in relation to the individual views of the House. Yes, we were not so worried in the Commons about the 14 days, but we had not had the benefit of a Committee stage on the Bill in which where there was real focus on those issues. Because I detect quite a strong feeling around the House against the 14 days, the only way in which it can go wrong this afternoon is if by not choosing our amendments carefully we end up with the Government getting their way without the 14 days being there. I respectfully advise Members of the House, as I will advise my own group, to vote for my amendments, because they will ensure that the 14 days goes—except in relation to a Government who have never obtained the confidence of the House of Commons. If the 14 days is removed, I can see real force in the Government's amendment. It gets rid of the Speaker and creates some certainty about what a Motion of no confidence is, so that many of the problems will have been resolved.

If the proposed new clause were put in, as amended with my provision, the House would then be asked to vote on adding in more clauses. If the new clauses proposed by the noble Lords, Lord Norton of Louth, Lord Armstrong and Lord Cormack, were put in, we could have more than one Clause 2 at that point—an unusual result, it seems to me, but one that appears to be possible in the light of what the Lord Speaker said. That is what the House authorities are saying, but that result would seem to be possible only on the basis that, at Third Reading, we would have to make a choice between the various Clause 2s that were in. However, I recommend simplicity to the House: do not get us into that complication but vote for the amendment to get rid of the 14 days, which is the first vote that will be had. Then we can all comfortably rally around Amendment 20.

Amendments 20B and 20C (to Amendment 20) not moved.

Amendment 20 agreed.

Amendment 21 not moved.

Amendment 22 had been withdrawn from the Marshalled List.

Amendments 22ZA and 22ZB not moved.

Armed Forces Covenant


My Lords, with the leave of the House, I will now repeat a Statement made in the other place by my right honourable friend the Secretary of State for Defence.

“With permission, Mr Speaker, I should like to make a Statement on the Armed Forces covenant, which is being published today along with other important documents on how we are taking forward our pledge to rebuild the covenant.

The Government have no higher duty than the defence of the realm, and the nation has no greater obligation than to look after those who have served it. The men and women of the three services—regulars and reservists, whether they are serving today or have done so in the past—their families and those who have lost a loved one in service all deserve our support and respect. That obligation is encapsulated in the Armed Forces covenant. The ties between the nation, its Government and its Armed Forces are not the product of rules and regulations, or of political fashion. They are much deeper than that. They have endured for generations and they go to the heart of our national life. So the Armed Forces covenant does not need to be a long and detailed charter. It should be a simple and timeless statement of the moral obligation that we owe. We are therefore publishing today a new version of the covenant, written for the first time on a tri-service basis.

The covenant is enduring but it will mean different things at different times. The expectations of today’s service men and women are rightly different from their predecessors. Alongside the covenant, we have published guidance on what we believe it means in today’s circumstances. It sets out a framework for how the members of the Armed Forces community can expect to be treated, and the aspirations and expectations that we believe are implicit in the covenant.

The covenant and the guidance do not, however, describe what the Government are doing to put this into effect. That is why I am also publishing a paper entitled The Armed Forces Covenant: Today and Tomorrow, which sets out the practical measures we are taking to support the covenant. It brings together the commitments we have already made with the new measures that I am announcing today.

A number of these measures take forward the ideas of Professor Hew Strachan, who led an independent task force on the covenant last year at the request of the Prime Minister. His report was published on 8 December, and I would like to record the Government’s thanks for the extremely valuable work that he did. We are today publishing the Government’s full response to this report.

One of Professor Strachan’s most important recommendations was the introduction of a community covenant. This will strengthen communities and build new links between them, local government and the Armed Forces. We expect it to be launched next month, but I can today announce that we are allocating up to £30 million over the next four years to support joint projects at a local level between the services or veterans’ groups and the wider community.

I will now turn to the matter of the Armed Forces Bill, which the House will shortly have a further opportunity to consider. This contains provision for an annual report on the Armed Forces covenant, which is designed to strengthen this House’s ability to scrutinise how we are fulfilling our obligations. In this way, the existence of the covenant is being recognised in statute for the first time, as promised by the Prime Minister last year.

In deciding how best to recognise the covenant in law, the Government have had to maintain a careful balance. On the one hand, we do not want to see the chain of command undermined or the military permanently involved in human rights cases in the European courts. On the other, we must ensure that the legitimate aspirations of the wider service community, the Armed Forces charities and the British public for our Armed Forces are met.

We believe that a sensible way forward that will give the right kind of legal basis to the Armed Forces covenant for the first time in our history is to enshrine the principles in law, provide a regular review of the policies that will make them a reality, ensure that Parliament has a chance to scrutinise this review through the annual report, and that the report itself is widely informed, consultative and transparent. I believe it is right that the Government are held to account on delivering the principles underpinning the covenant by this House, and not by the European courts. That is what our approach will ensure.

I want to highlight two important aspects. First, the Government will set out on the face of the Bill the key principles we believe underpin both the covenant and any report on its implementation. Ensuring that members of the Armed Forces community do not suffer disadvantage as a result of their service, and that where appropriate they receive special treatment, are at the heart of the Armed Forces covenant. I can tell the House this afternoon that the Government will bring forward amendments, before the Third Reading of the Bill, to require the Secretary of State to address those principles in preparing his report to Parliament and to recognise the unique nature of service life.

Secondly, the Government have always been clear to the House on their commitment to consult stakeholders on the annual report. First, we intend to consult widely in the preparation of the report—internally through the chain of command, and with external stakeholders. We will be actively interested in evidence about how the whole range of public bodies is performing, not just Whitehall departments. Secondly, before laying the report before the House, we will give the members of the external reference group from outside Government an opportunity to comment on the report, and we will publish any observations alongside it.

We are working with the external reference group to update its terms of reference in line with its significant new role. The Government place great importance on maintaining our dialogue with bodies such as the service families federations and the major service and ex-service charities in telling us what is happening on the ground, and I should like to pay tribute today to the invaluable contribution they make to the welfare of the Armed Forces community. I would like to pay a particular tribute to the contribution to this debate of the Royal British Legion, which continues to do such outstanding work in support of our Armed Forces.

The Armed Forces covenant is not just about words, it is about actions. The men and women of our Armed Forces judge us by what we do to improve their lives and those of their families. Since taking office, this Government have taken a series of important measures to rebuild the covenant. Let me mention some of them. We have doubled operational allowance; we have included service children within the pupil premium; we have introduced scholarships for the children of bereaved service families; and we have taken action to improve mental health care.

These measures are especially impressive when set against the background of the dire economic situation in which this Government must operate. There is much still to do. I have always been clear that our commitment to rebuild the covenant is a journey we are beginning, not something we can do overnight. And I believe our people understand that.

But we are continuing to take action. I am today announcing additional measures that will tackle some of the problems experienced by service personnel, families and veterans. I have already mentioned the new community covenant grant scheme. We are also setting up a new fund of £3 million per year, over and above the pupil premium arrangements, to support state schools catering for significant numbers of service children. We will launch a veteran’s card that will allow access to discounts and privileges. In helping injured personnel, we will guarantee that veterans suffering serious genital injuries have access to three cycles of IVF, wherever they live. We will increase from 25 per cent to 50 per cent the rate of council tax relief for military personnel serving on operations overseas.

In addition, between now and the Summer Recess, I expect there to be further announcements, which again underline that this is a priority across the whole of government, and not just defence. Today, Ministers are chairing a meeting with key stakeholders to discuss and agree ways to improve access to housing for our people. My right honourable friend the Health Secretary and I are looking forward to the report from my honourable friend the Member for South West Wiltshire on how to further improve the supply of prosthetics for injured personnel. We will consider how to ensure that guaranteed income payments made under the AFCS are not required to be used to pay for social care provided by the public sector.

The obligation we owe to our service men and women, set against the commitment and sacrifice which they make, is enormous. In the current financial climate, we are not able to do as much to honour that obligation, or to do it as quickly, as we would like, but we can make clear the road on which are embarked.

Our understanding of the covenant will change over time, as will the way in which government and society meet it. The framework we have set out today provides the flexibility we need so that not only the Government but all of society can fully pay the enormous debt we owe our Armed Forces, their families and our veterans. I commend it to the House”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for repeating the Statement made in the other place by the Secretary of State for Defence and for the advance copies of the three reports on the Armed Forces covenant and the Statement itself. We of course endorse the Minister’s comments on the support and respect that our Armed Forces merit and deserve from all of us. We welcome today’s Statement and will examine the details closely, including the amendments to the Armed Forces Bill which the Government propose to bring forward.

The Statement represents a U-turn in policy and in intention; one that we welcome. In June last year, the Prime Minister said on “Ark Royal” that a new military covenant would be, as he put it,

“written into the law of the land”.

“Ark Royal” has since been decommissioned and, until today, it looked as though the Government were determined that the Prime Minister’s pledge on the military covenant would suffer the same fate. The Government brought forward proposals which would reference the covenant in law but without a formal definition. The Royal British Legion said that it was “nonsense” to suggest that that would deliver the Prime Minister’s pledge. The Royal British Legion, the public, the media and Members from all sides of both Houses of Parliament have been pressing for amendments to be made to the Armed Forces Bill currently in the other place to honour the pledge and enshrine the military covenant in law.

In February, amendments were tabled in the other place to the Armed Forces Bill which called for a statutory instrument to establish a “written military covenant”. They were voted down by the Government. In mid-March, the Prime Minister said that the proposals in the Armed Forces Bill were the “right thing to do”, at the same time as the Royal British Legion said that the proposals were “completely counter” to his original pledge.

The Armed Forces Bill has now been delayed for the major rethink which the Government announced in Parliament today, after first announcing it in the media over the weekend. We do not have to look far to find the reason for the welcome U-turn: the likelihood of defeat in the other place and the certainty of defeat in your Lordships’ House. The Government are not changing their policy because they want to but because they have to. If that is to be disputed, why has the Armed Forces Bill been delayed? I had been asked for a day for Second Reading, and had agreed it, only for it to be postponed. Why have the Government been speaking and voting against implementing the clear pledge given by the Prime Minister on board “Ark Royal”?

In recent months we have seen pensions for injured soldiers and war widows cut; we have seen allowances cut; we have seen warrant officers sacked by e-mail and announcements of redundancies leaked to national newspapers; and we have seen the pay of service personnel frozen. We hope that today’s Statement is the start of a fresh approach to how this Government support our Armed Forces, although I acknowledge the commitment that the Minister has shown, does show and, I know, will continue to show to our Armed Forces.

The covenant is made in recognition of the fact that a career in the Armed Forces differs from all others. It recognises that service personnel agree to sacrifice certain civil liberties and to follow orders, including to place themselves in harm’s way in defence of others. In return, the nation recognises its obligations and helps, supports and rewards those in the Armed Forces. As the Minister put it in repeating the Statement:

“The Government have no higher duty than the defence of the realm, and the nation has no greater obligation than to look after those who have served it … That obligation is encapsulated in the Armed Forces covenant”.

In his foreword to the report, The Armed Forces Covenant: Today and Tomorrow, to which the Statement referred, the Secretary of State for Defence also acknowledges the steps taken by the previous Administration.

The Government will now set out in the Bill the key principles which they consider underpin both the covenant and any report on its implementation. With that objective in mind, the Government will bring forward amendments before the Bill’s Third Reading in the other place. Can the Minister confirm that that means that the Government will not be accepting the amendments tabled by Mr Philip Hollobone MP in the other place, which were supported by the opposition Benches there, as well as by a number of Members on the government Benches?

Is it the Government’s intention to seek to draw up the amendments they are bringing forward on a cross-party basis and in discussion with the Royal British Legion and forces’ families? In the light of the strength of feeling that the Government have caused through their lack of enthusiasm until now for delivering on the Prime Minister’s pledge, it is surely vital that they do their utmost to make sure that there is now agreement across the board on this vital issue so that the covenant is taken out of the cut and thrust of party politics.

The Statement referred to the introduction of a community covenant, which was one of Professor Strachan’s recommendations. The amount allocated is £30 million over the next four years. Can the Minister say a bit more about the kind of joint projects at a local level that the Government have in mind?

The Statement also referred to a new fund of £3 million per year to support state schools catering for significant numbers of service children. Is this all additional money which does not come in whole or in part from any existing funding programmes for children of members of the Armed Forces? How many service children do the Government envisage that this money, over and above the pupil premium arrangements, will in reality be able to support in a meaningful way?

The Government’s report entitled The Armed Forces Covenant, made available with the Statement, refers on page 11 to what the Government “will consider” in relation to measures to minimise the social and economic impact of military life and to enable equality of outcome with other citizens, as well as special treatment for the injured and bereaved. The use of the words “will consider” might seem to some a bit weak and vague. Why would the Minister disagree with that view?

The Statement outlined a number of measures, at least some of which appear also to have been the previous Government’s policies, as set out in 2008 in the first cross-government strategy on the welfare of Armed Forces personnel and in the 2009 Green Paper, which proposed innovative policies to improve welfare. Can the Minister confirm the total amount of new investment that will be provided to implement the proposals to which he referred in the Statement? Will he also confirm that all this is new investment and is not to be found from within existing resources, and that it is not already contained in whole or in part in any existing programmes announced by this or the previous Government? I also ask that in the context of indications that further cuts may be made by the Government in Ministry of Defence expenditure.

In conclusion, we will support the Government when they do the right thing. In setting out to enshrine the covenant in law, the Government are entitled to the support of the Opposition, and, if they do it properly, that is what they will have. Our Armed Forces and their families would expect us to come together and to work to make a success of this important announcement.

My Lords, I thank the noble Lord for his general support for the Statement. I start by welcoming him to the Dispatch Box in his new position as shadow Defence Minister in this House and I very much look forward to working with him. Defence is such an important issue that I wish to be as open as I am able to be in sharing information with him.

The House will be very grateful to the noble Lord, Lord Tunnicliffe, who did a very good job of keeping me on my toes. The noble Lord was in his party’s defence team for a number of years and, picking up one of the points that the noble Lord, Lord Rosser, made, I acknowledge the steps taken by the previous Administration on the military covenant issue. I know that this matter was close to the heart of the noble Lord, Lord Tunnicliffe.

The noble Lord, Lord Rosser, asked whether this is a U-turn. It is not. The steps that we are taking in enshrining the principles of the covenant in law fulfil the pledge made by the Prime Minister last summer. This coalition listens and we are very grateful for the work and advice of the Royal British Legion. Significantly, the covenant is being recognised in statute for the first time and it is right that the Third Reading of the Bill should take place after publication of the Armed Forces covenant to allow informed debate.

I may not be able to answer all the noble Lord’s questions and, if I do not, I shall certainly write to him. He asked me to explain a bit about the community covenant. The scheme aims to encourage public service providers, the private sector and the voluntary and community sectors to volunteer support to their local Armed Forces community. The nature of the support offered will depend on the needs of the local community but it could take the form of, for example, free access to leisure facilities, discounts in shops and restaurants, or special provisions in local service delivery, such as additional support in accessing public services. The community covenant is intended to be a two-way arrangement, and we will actively encourage the local Armed Forces population in their area to offer support to their local community. This might include participation in open days, school visits or helping with community projects, and it will be determined by the needs of the local area. The community covenant is about integrating service life into the local community and improving engagement between the local service population and other members of the community.

The noble Lord asked about the pupil premium for service children. I can confirm an additional fund of £3 million a year to support state schools catering for significant numbers of service children, including the children of reservists. Many schools run into problems because their pupils have to move quickly with their parents or a new batch suddenly arrives and this can be very disruptive. We understand that up to 36,000 children in England alone will benefit from this.

Finally, I have placed 150 copies of these publications in the Printed Paper Office. I accept that there is a lot to absorb in them and accordingly I am very happy to organise a briefing on the Armed Forces covenant for those Peers who would be interested and my office is in touch with the relevant officials to identify suitable dates. This will enable Peers to digest these publications fully and they will then have the opportunity to ask me or the relevant experts questions.

I thank the noble Lord very much for repeating the Statement and I look forward to reading the documents he has talked about. A number of the areas of support mentioned in the Statement for Armed Forces personnel, veterans and families deal with health, education and local government support. These are devolved Administration responsibilities. Can the Minister explain how the Government are going to ensure that all the devolved Administrations march in step and that there is no possibility of some postcode lottery in the treatment of individuals by separate Administrations?

My Lords, the noble and gallant Lord, as always, raises a very important issue. Much of what is contained in the document is UK-wide but where matters are devolved, such as education and healthcare, which the noble and gallant Lord mentioned, the devolved Governments are taking forward a number of measures to support the Armed Forces community which reflect the different legislative landscape and the way in which their public services are delivered. It is for them to publicise the measures they are taking. We will work with their respective new Governments to get the best outcome for the Armed Forces community.

My Lords, I welcome the Statement but it is worth reflecting that during the time I was the responsible Secretary of State I never heard the phrase “military covenant” used at all. During that time it was accepted, and understood by all who were involved, that we had a responsibility to care for our servicemen. I appreciate that it is the first time the opposition spokesman on defence has spoken, but I found it rather difficult to contain my normal calm self when I heard him complaining about why we were not spending more money on certain aspects of the covenant. How much more we could do if we had not inherited the biggest defence deficit in modern times—£30 billion. Even the papers today make clear the problems we face.

There is heightened public concern because of the campaigns and activities in which we are involved at the present time. Out of Iraq and Afghanistan is coming a legacy that will require enormous attention, considerable expense and priority consideration in housing and health. I welcome the statements made by my noble friend, particularly about housing as there is a distressing number of homeless ex-servicemen and a number who are severely handicapped and homeless. However, the issue is not just the housing of ex-servicemen. We are told that if efficiency improvements provide the resource, something will be done about serious problems in existing service housing, which certainly ought to have the priority in any official covenant. Covenants are fine, enshrined in law is fine, but it is the actions that are taken and the care that is given that matter above anything else.

My Lords, my noble friend makes a very good point and I am certainly not at all happy to be a Minister in this very difficult financial environment. Honouring the covenant does not necessarily mean having to spend large amounts of money. Ensuring that service personnel, their families and veterans are treated fairly can often be about adapting existing policies where the particular needs of the service community have not previously been taken account of. Many of the commitments in the covenant are being led by other government departments and will not rely on the defence budget.

My noble friend made a very good point about the homeless. We take the issue of former personnel who find themselves without a home very seriously. Research carried out specifically in London shows that the proportion of veterans among the homeless population has fallen dramatically over the last 10 years.

My Lords, I greatly welcome the Statement and look forward to many of its proposals becoming law. I want to ask the Minister about our 5.5 million veterans, many of whom feel that when they take off their uniform Britain forgets them. Can the Minister tell us precisely what benefits veterans will get from the veterans’ card? Further, as there are so many veterans’ charities—doing wonderful work that perhaps we as a country ought to be doing—many veterans do not know where to turn when they are in difficulty. What progress has been made by Veterans UK in its ambition to become the number one point of contact for ex-service men and women who need help?

My Lords, the noble Lord asked me about the veterans’ card which I understand will be launched next year to access commercial discounts or privileges and to consider how this could be expanded to include service families. Anyone who served in the Armed Forces will be entitled to have this veterans’ card—so a lot of Members of this House can apply to get the card. The card will be sponsored and paid for by retailers. Nothing will come out of the defence budget. I understand that some retailers are going to offer discounts of up to 50 per cent. I know of a particular pizza chain which is prepared to offer up to 50 per cent off throughout the country. If any noble Lord would like to come and discuss it afterwards, I can reveal the name of the chain.

My Lords, today’s Statement said:

“The Armed Forces covenant is not just about words, it is about actions”.

However, most of today’s Statement is very much long on words and generalities and rather short on specifics, and falls considerably short of the weekend’s spin and hype. Nevertheless, there are a number of steps in the right direction. I want to ask my noble friend two specific questions. First, regarding the £3 million over and above the pupil premium to support state schools, he mentioned that 36,000 pupils are likely to benefit. How is this likely to be allocated? Is it going to be so much per head for service children or will schools have to bid for the allocation? Secondly, policy option five on page 32 of the Strachan report talks of encouraging Olympic involvement. Can my noble friend say anything about the involvement of service personnel, such as veterans and those who are wounded, in the coming Olympics and whether there is going to be any priority allocation of tickets? Overall, we need time to study these reports and I very much look forward to the Armed Forces Bill coming to this House when we can have a full and proper debate on the covenant.

I thank my noble friend for his questions. It is the intention that the pupil premium for service children in state schools will cover the whole of the UK so it is broader than the pupil premium. I will have to write to my noble friend regarding how schools will bid for this.

I was looking through these different publications earlier and saw in one of them a chapter on the Armed Forces’ help for the Olympics. I will have a word with the noble Lord afterwards and point it out to him.

My Lords, I thank the Minister for repeating the Statement, which has much in it to be welcomed. However, is not a key point of enshrining a requirement in law that there should be a remedy if the requirement is not met? In this case, the remedy seems to be that Ministers will have to explain themselves in Parliament. However, as the noble and gallant Lord, Lord Craig, pointed out, many issues that have caused such problems for our service families over the years are outwith the control of the Ministry of Defence. I refer, for example, to their inability to get access to dental services, to their having no choice of schooling for their children, and to their losing their place on NHS waiting lists when they move with their spouses. Given that fact, and accepting that devolved authorities are a different and difficult case to which we may wish to return, and given the particular nature of the remedy in this case, will the Minister say whether the Secretaries of State for the relevant departments—for example, health and education—will be held to account in Parliament at the time of the annual report, rather than just the Secretary of State for Defence?

My Lords, I thank the noble and gallant Lord for his question. I very much hope that they will be held to account when the annual report comes out. This will cover deficiencies in any of the departments, so I hope that they will be named and shamed.

My Lords, will my noble friend elaborate on the health arrangements when injured servicemen have to go into civilian life? At present there is often a horrible gap in provision.

I thank my noble friend for that question. Again, the issue is covered in one of these publications. We are giving a lot of thought to it and I will write to her on that issue.

My Lords, I very much welcome the decision to have this covenant. However, is the noble Lord aware how complex this is going to get? I will give an example that has been touched on already. One of the main problems is service personnel who have been in the services for a long time, who have seen armed conflict and who come out and find it very difficult to settle. It is a question not just of housing. Consequent rates of suicide, attempted suicide, hospital admissions and prison admissions are all extraordinarily high, as the Minister knows. We ought to discuss—perhaps when we get into the detail of the Bill—whether there is not a more sophisticated role for Armed Forces charities, which could have some of the work outsourced to them. Ex-service personnel will often relate better to them than to local or national government institutions.

My Lords, the noble Lord makes a very good point. We always work very closely with service charities. One area that was raised by the noble and gallant Lord was that of veterans and mental health, where we work very closely with the charity Combat Stress, and with the NHS, to explore and develop appropriate models of care and support. We recently launched a 24-hour mental health helpline, run by the charity Rethink on behalf of Combat Stress, which is funded through the NHS.

In his Statement, the Minister referred to the loss of a loved one. Will he confirm that the Government remain committed to improving the coronial system so that families are not traumatised by delayed or improperly conducted inquests, and that the principles outlined in the Coroners and Justice Act will continue, even though the exact structure is under discussion? Will the Minister confirm also that the voices of those representing people who have been bereaved through military conflict will be embedded in those reforms and will be considered; and that, should the conduct of an inquest be inadequate, there will be recourse through the local authority ombudsman?

My Lords, we take the issue of coroners very seriously. I cannot today give the noble Baroness the confirmation that she wants. Discussions are going on as we speak between the Ministry of Defence and the Ministry of Justice on this issue, and the response will be apparent very soon.

My noble friend will recall that I wrote to his right honourable friend Mr Fox about veterans' courts, and the possibility that we could introduce them in this country in the way that they have been in certain states of the United States of America. They are courts to which veterans could apply to be heard if they get into trouble with the civil authorities. I note that the last page of the Government's response, under Annex D, “Further research required”, states:

“Possible areas for further exploration include … The profile of the service community in prison: length of service, family background, age, etc”.

Does the Minister agree that the problems of veterans in prison should be pushed up the agenda rather than onto the back page of the report, and that their interests should be seriously considered by the Government?

My Lords, I thank my noble friend for that very important question. I have not seen a copy of the letter that he sent to my right honourable friend, but I will make a point of seeking it out. The issue of veterans in prison is one that we take very seriously. We are in touch with the Home Office about that and I would welcome further discussions with my noble friend on this very important issue.

Will my noble friend say how veterans will be informed about their benefits and privileges under the veterans’ card that will be issued? Will this be done through service charities or by the Ministry of Defence?

I thank my noble friend for that question. We have not come to a final decision. The card will not be launched until next year. It will probably be launched by the Ministry of Defence, although it will be paid for by the retailers. At this stage I cannot provide my noble friend with the answer that he wants.

My Lords, the language of “covenant” is interesting because it is both religious and legal in its history. Tying down what the covenant means is crucial. The language of the scope of the covenant is in the subjunctive: all these things “should” happen, not “must” or “will” happen. What independent monitoring of the working of the covenant is envisaged beyond reporting by a Minister to Parliament?

My Lords, that is where the external reference group comes in. It brings together representatives from across Whitehall, key service charities such as the Royal British Legion and SSAFA, the three Families Federations and representatives from the academic world. It delivers an independent judgment on the Government's efforts in supporting the Armed Forces community. I mentioned earlier Professor Hew Strachan, who is a member of the ERG which is chaired by Chris Wormald from the Cabinet Office.

My Lords, I thank the Minister for repeating the Statement today. I agree that he has shown great support for the Armed Forces, and I know that he has found it very difficult. When I fought in the Falklands, in my naivete I felt that in the final analysis my country would look after my wife and children if things went wrong. I did not believe that a covenant was necessary. I am generally pleased that there is a covenant, but I will not be sure until I read the detail.

What I did know in the Falklands was that the capability of the weapons systems, and the sheer number of units involved, were more important to me than almost anything else. The document states that all Governments have no higher duty than defence of the realm. I do not believe that in terms of funding over the past year, the MoD has taken the top priority for spending. Will the Minister confirm that bearing in mind articles such as that today in the Times, and the fact that more money is being looked for, defence will now take the top priority among all departments for spending?

My Lords, we will certainly keep all the other departments up to speed on this. As the noble Lord said, for years Governments have talked of supporting the military, tending to focus largely on what it spends on equipment. I can assure the House that the Armed Forces covenant is about our obligations as a society to our military personnel.

My Lords, I welcome the Statement from the Minister today. It is a pity that it had to go through a process in the Commons whereby the Government did a U-turn. It would have been much better not to have put themselves in that position from the beginning.

There are three documents. We have not had much time to read them, but I welcome the Statement. In many respect, the documents raise more questions than they answer. The Minister referred to the Armed Forces Bill, and we will discuss that in depth in this House, but my concern is that the content of the covenant is worthy of a full and analytical discussion in this House, quite apart from the Bill. Knowing how committed the Minister is to the welfare of our personnel, I invite him to agree with me that it would be appropriate to discuss the documents we have been presented with today in a proper debate in this House in advance of the Armed Forces Bill coming before us.

The noble Baroness makes a very good point, and I will certainly take it up with the usual channels. These are very complicated publications, and there is an awful lot to absorb. That probably cannot be done just by a briefing in this House or in the Ministry of Defence, so I am very happy to consider that.

On the timing, Members of another place will have an opportunity to debate the Armed Forces Bill in the Committee of the Whole House on 14 June, and the Third Reading will be on 16 June.

Fixed-term Parliaments Bill

Report (2nd Day) (Continued)

Clause 7 : Final provisions

Amendment 22A

Moved by

22A: Clause 7, page 4, line 3, leave out “comes into force on the day it is passed” and insert “shall come into force subject to its approval in a referendum in which the turnout exceeds 40%”

My Lords, Amendment 22A is grouped with Amendment 23, but I do not intend to move Amendment 23, which is about the relationships between the two Houses, in advance of the publication of the House of Lords reform White Paper. I understand that we will be getting it tomorrow, so having a discussion today is rather pointless.

Amendment 22A refers to the need for major constitutional issues to be ratified by referendum. I am acutely aware that the idea of a referendum at all is not too popular at the moment. I was not very keen on the last one, but I am now that I know the result. I know that my justification for raising this was that a real-world event of some significance occurred between Committee and Report on the Bill. This is a constitutional Bill of some significance, and in between the two stages a very important event took place: the referendum on first past the post versus the alternative vote. It is absolutely right and proper that when the first referendum in 40-odd years has taken place, it should be considered.

I am pretty surprised that there has been no official statement on the result of the referendum to either House, as far as I know. There certainly has been no statement to this House, and I do not think there has been one to the other House either. I fear that I know the reason. Perhaps the Minister can give me a more principled reason than this, but I fear that it is in both sides of the Government’s interest to pretend that the referendum has not happened. The Liberal Democrats obviously do not want to be reminded of the result, and the Conservatives, who may be muttering beneath their breath and punching the air silently, if it is possible to do that, may none the less feel that they had better not say too much about it at the moment because it might upset their coalition partners. I do not have either of those inhibitions. I am very happy to talk about the referendum and its significance for this legislation. I want to make sure that I remain in order.

I have to add, in parenthesis, that there is almost a conspiracy of silence among the media on this referendum. I think of two newspapers in particular—the Guardian and the Independent—which set great store by the referendum and campaigned for a yes vote. I am sure we would have had no end of in-depth analysis if there had been a yes vote, but as far as I can discover, although I cannot claim to read both papers in detail every day, there has been virtually no reference to the outcome of the referendum. There is a kind of a news blackout on discussing it. I do not intend to discuss it at length.

I can hardly believe what I am hearing. In the referendum, the Labour Party was split. I am not sure whether it was split down the middle or at some other juncture, but it was clearly severely split, with its leader going one way and a lot of other people, including the noble Lord, another. Can he tell us what his Front Bench would have said had there been a statement?

I am responsible for all sorts of things, but I am happy to say that, by my choice—who knows what might have happened now—I retired from the Front Bench. One reason why I wanted to retire from the Front Bench was to have the sheer joy of discussing these constitutional issues without any inhibition.

That is absolutely right. Just to correct a mathematical point, the Labour Party was not split down the middle. There was a majority of Labour MPs and Peers, a huge majority of Labour councillors and, so far as we know, activists and a colossal majority among voters. I see my noble friend Lord Reid in his place. He took an identical view to me and many other members of the Labour Party on the issue.

If the intervention was intended to embarrass, it has merely prolonged my remarks and enabled me to put the record straight on what the Labour Party did in practice in a referendum. The commitment of the Labour Party was to hold a referendum, not to tell people what to do, although I must admit that some of us in the Labour Party tried to influence the outcome. There has been a news blackout on this referendum, and I think I have explained the reason why.

The obvious question to ask is: what is the significance of this reference to the referendum in the Bill before the House? I think it is very significant indeed. The first point is to remind everyone of the colossal majority, by any reasonable expectations, in the referendum. It was passed in every voting district in the United Kingdom except, I think, seven. In most of the polling districts, between two-thirds and three-quarters of those asked said they did not want any change. I draw at least a couple of lessons from that that are significant to this Bill. It tells us pretty clearly that the public have very little appetite for major constitutional change. Many of us have argued that time and again in vain. Some of us did so through long periods of the night and were much criticised for it. We tried to point out to the Government and others that the public were just not raising these issues. There was no appetite for them whatever. If anyone is in any doubt that should a referendum be held, let us say, on fixed-term Parliaments—which of course reduce the power of the public; I will come to that in a moment—I have very little doubt that the outcome in that referendum would be similar to the outcome in the referendum that we have recently held.

The other thing I want to mention is something that I might be able to convince the House on. The outcome gives the lie to the oft repeated—in fact, ad nauseam repeated—comment, particularly by the Deputy Prime Minister, although others are guilty as well, that somehow or other we have a broken constitution, a broken politics, in this country. I have heard that word “broken” time and time again. One or two people who take close interest in these issues might be able to repeat that. I do not see any evidence, certainly not based on the result of that referendum, that that is what the people of this country think. They make all sorts of criticisms about politicians and politics, which is a healthy thing to do, but when it comes to the basic democratic construction of our constitution, the public’s involvement in it, their ability to speak to and canvass their Members of Parliament, their ability to participate in elections and the freedom with which any conceivable opinion can be expressed, this country’s constitution, far from being broken, works remarkably well in comparison with—I would go so far as to say any country in the world—certainly the vast majority of countries in the world.

Please may I urge a little rethink, particularly on the part of the Liberal Democrats, on this constantly repeated phrase about a broken constitution? It does this country no favours—obviously—and it happens not to be true in the eyes of the electorate. If there were a broken constitution, my word, you could rest assured that the members of the public who constantly canvass their MPs—write to them, e-mail them, visit them at their constituency offices and so on—would be letting their Members of Parliament know. If any former MP is going to stand up and tell me now that the public are deeply concerned about broken aspects of the constitution, please do so and I will readily give way, but that is not my experience.

I know there is no great mood in the House to set forth on another referendum, but, as I said, this is the only basis on which I could introduce this subject, which was also raised in Committee. I ask the Minister on what basis, if any, he thinks the public want this huge change to their constitution. When he answers that question, I would like him to confirm—he owes it to this House, as this has been raised on many occasions, but we have not yet, as far as I can recall, and I have been here most of the time, had a clear answer to this question—that if this Bill passes in the way the Government want, there will be fewer general elections in this country; the public will be consulted less frequently. I regard that as a step backwards. We all know about problems with turnout, and I do not want to overstate my case, but I find a general election day as an awe-inspiring event if you think about it—I do not normally think about it in these terms because I am so busy. We have had all the opinion polls and all the chatter, and then there is a curious calm on election day when the public decide, and we never quite know what they are going to decide or the basis on which they make their decision.

If this Government are proposing, as they are, that there will be fewer general elections in the future—my calculation is that there would have been three fewer since the Second World War—could they at least acknowledge that this is the case and that they are going into this with their eyes wide open? It is very important that they do. I would like the Minister to tell us what the evidence is that the public want this change. Do they know the significance of what the Government are proposing? Furthermore, given that again we are being repeatedly told that all these constitutional changes are part of a coherent whole—the Bill we just considered, this Bill and the one that is coming down the track on House of Lords reform—I really would like to know what criteria the Government use to determine whether a constitutional Bill is of sufficient significance to be put to the people in a referendum. When I asked the Minister that in Committee, although he is a very honest man and good at dealing with this Bill he did not give a particularly straightforward answer. He said:

“The noble Lord, Lord Grocott, asked my noble friend Lord McNally which issues would be submitted to a referendum, and my noble friend replied: ‘the Government believe that Parliament should judge which issues are the subject of a national referendum’… Indeed, it will be possible for Parliament to make that judgment on any legislation”.—[Official Report, 15/3/11; col. 193.]

It is not a very straightforward answer, let us be absolutely honest, to say that Parliament will judge when there is a heavy Whip—we all know perfectly well that this recent referendum would never have gone through the House of Commons on a free vote. That applies to the other half of that Bill, which increased the size of constituencies, so may we please have other criteria, aside from saying that it has to go through Parliament? Of course legislation has to go through Parliament. I want to know the basis on which the Government decide whether major constitutional Bills such as this one or the House of Lords reform Bill should be subject to referendums. What made the proposed change in the voting system subject to a referendum but, unless the Government have had second thoughts, not these other constitutional Bills? I beg to move.

My Lords, not for the first time the noble lord, Lord Grocott, has entertained the House with some good, robust constitutional common sense. I would just gently rebuke him. I am glad he has decided not to press Amendment 23, because he above all people must realise that the phrase “elected House of Lords” is a contradiction in terms. One cannot have an elected House of Lords; what the Government are, I believe, about to propose—and our suspense will be at an end tomorrow, I am told—is the abolition of the House of Lords and its replacement by a totally different sort of second Chamber. It behoves all of us in this place to recognise that reality and then to debate it on its merits or, as I believe, lack of them. We cannot allow ourselves to be deluded into talking about House of Lords reform when in fact we are going to debate House of Lords abolition. I am glad, therefore, that he is not going to move that amendment.

As to the amendment that he has moved, I am not sure how he could expect the Deputy Prime Minister to make a statement on the referendum. It is very difficult to make a statement when your face is covered in egg, and very difficult for the Prime Minister to make a statement when all he could do was echo a predecessor and say, “Rejoice, rejoice”. We know why there was no statement, but we are all glad at the result.

The noble Lord has placed before your Lordships’ House one very important question which it is important that my noble friend the Minister should seek to answer and which, for all his sensitivity, charm and many other qualities—and I do not say that in any sense facetiously—he has failed adequately to address until now. What are the criteria to determine a referendum? It cannot merely be what Parliament decides, because that means what is convenient for the Government of the day. Do not let us again delude ourselves into believing all the fine rhetoric surrounding this Bill. The Executive in our country are drawn from the legislature, and I do not object to that at all; I never have. It is the Executive who are the driving machine in all this. I personally do not like referenda, but they are in the system now. If our constitution, of which the noble Lord has spoken both eloquently and accurately, is to be safeguarded for future generations, it is important that we establish a principle that on major constitutional issues such as devolution, our continued membership in 1975 of the Common Market, as it then was, or the future of either or both of our Houses of Parliament, there should be the opportunity for the people, untrammelled by other considerations that inevitably crowd upon them during a general election, to be able to decide.

I hope that all those in government at the moment will reflect on that as we approach detailed debates in coming days, weeks, months and, I trust, years and determine what at the end of all that debate should happen. It is very important that we have a clear and coherent answer to that. It is unreasonable for us to suggest that my noble friend the Minister could give a comprehensive answer this evening. Of course he cannot—he has to consult his ministerial colleagues and superiors—but he can at least tell us that he has heard the words of the noble Lord, Lord Grocott, and that he recognises that there has to be an intellectually defensible set of criteria that determines what a major constitutional issue is and what it is not, and when there should be a referendum and when there should not.

Like the noble Lord, Lord Grocott, I am not implying that there should be a referendum on the Bill now before us, but I congratulate him on ingeniously using this opportunity to bring up a very important issue that gives us all a chance to reflect on it as we move towards an issue that truly will affect not only the future of this House but the future balance and stability of our constitution as a whole: the constitution about which the noble Lord spoke with such quiet passion and eloquence. Let us see what my noble and learned friend has to say before we end the Report stage of what is not the most glorious constitutional measure this House has been asked to consider.

My Lords, briefly, I support the noble Lord on his amendment. I do not think that the constitution, or even our politics, is broken, but a certain amount of damage has been done. In my lifetime I have seen a tendency for participation rates in voting to fall, along with an increasing sense of weariness with modern politics and disrespect for politicians. I am on the record as saying, when the Constitution Committee published a report on referendums last year, that there is a place for them in building confidence. Interestingly, the participation rate in the recent referendum was really rather encouraging. It was higher than we thought it would be in the lead-up to it. A cautious but proper rediscovery of the place for referendums has a part in rebuilding political life in this country.

More substantially, I should like to try a thought experiment on your Lordships. Let us imagine that we had a Bill before us that proposed to extend the life of a Parliament from a normal term of five years to six years. Would we think that that required a referendum? We would probably think that it did because it would extend the maximum term from five years to six, but in practice we are going to extend the length of Parliaments by an average of about a year. Why is this not an issue on which there should be a referendum?

My Lords, I agree entirely with those who have just spoken that it would be helpful to the House—indeed, I think it is a necessity—that some clear principles should be articulated as to when a referendum would be appropriate. I understand the case for referenda on major constitutional issues. After all, the constitution is the property of the people and not of us as parliamentarians. If significant aspects of it are to be changed, there is a strong case for saying that they should be changed only with the permission of the people. However, I invite the House to consider the proposition that every significant constitutional change that we have seen over the last several decades has diminished the centrality of Parliament in our constitution. Whether it has been accession to the European Union, devolution or the development of the practice of holding referenda, we can see in all these instances that the capacity of the Parliament of the United Kingdom to take the major decisions that the people of the United Kingdom elected it to take has diminished. So before we express enthusiasm for the proliferation of referenda—perhaps no noble Lord wants to see their proliferation, although we should note that the European Union Bill seems to offer the scope for at least 57 varieties of them—we should consider what this may mean for the centrality and the character of Parliament in our national life.

My Lords, I thank my noble friend for giving us an opportunity to speculate on the nature and the circumstances that might make it imperative to hold a referendum. It is unreasonable to expect the Minister to respond in definitive terms, and I do not think that we would necessarily push for that tonight; but it is reasonable to expect two things. The first is that the Minister, who as noble Lords have said has been more than reasonable in his attempts to respond to and clarify some of these issues, should attempt to answer the point. Secondly, he should consider some of the criteria that might compel a referendum on subjects the nature of which we are now discussing. He might like to consider, for instance, that one of the elements that would compel a referendum would be on subjects that are closely related to those which have recently been the subject of a referendum, and when the course being proposed by the Government would, in effect, alter that decision of the people in some incidental fashion.

Hypothetically, the people could resoundingly decide to reaffirm first past the post as an electoral system. If there was then any suggestion of a move by either Chamber of Parliament to reject it, obviously that could not be done, especially in the wake of an overwhelming decision to reject the system of alternative vote. If any attempt was made by either Chamber of this House to change that decision, perhaps by putting it through Parliament itself, it would be an outrage. If it was good enough to do it by referendum in the first place, it is good enough to do it in the second place. It is no argument to say, “We did not like the result the first time around, and so we will change the system”. That is partly why the alternative vote was rejected. Therefore one of the criteria might be that there has been a recent vote on a subject.

A second criterion might be that something was a fundamental part of the British constitution, such as the voting system itself. It would appear from past experience that that requires a referendum. That might be the second criterion which a priori we would suggest would require the people to be consulted. A third criterion might be a fundamental change in the constitutional arrangements for the governance of the United Kingdom, such as the abolition of one of the two Houses of Parliament. As the noble Lord, Lord Cormack, said, we might speculate that we will have a proposal before us not for the reform of the House of Lords, but effectively to abolish it and replace it with a senate. I leave aside the substantial arguments as to whether this is taking place in the context of, whether intentionally or otherwise, the other House having been denigrated. I merely point out that abolishing a House of Parliament would be a major and fundamental constitutional change and therefore might be a subject for the Minister to consider as one of the criteria I have mentioned.

A fourth criterion would be the complete and fundamental diminution of the powers of one of the Houses of Parliament. I speculate again that if, for instance, we were to create a senate whose representatives were elected by, say, proportional representation, that would hugely diminish the powers, status and role of the other place. That is because the other House is only powerful relative to the second House of Parliament under the British constitution by virtue of the fact that the latter is constrained to scrutiny. If the second House were to add democratic legitimacy to its perceived wisdom and maturity, especially using a system that some people claim is more democratic than first past the post, that could not but diminish the powers of the House of Commons.

Finally, if each one of these criteria was an a priori reason for holding a referendum, we must conclude that any move to bring forward measures to change our constitution that included all the criteria—an electoral system that had already been put to the people, a proposal to abolish a House of Parliament and diminish the rights of the other House by the restoration of a new second House—would mean that they would be compelled to include in any legislative proposals an assurance that there would be referendum on them all. I shall give way to my noble friend.

I am most grateful to my noble friend. Would he not agree that the power of another place would be even further diminished if those elected to a second Chamber were on a 15 or 20-year term, were not eligible for re-election and were therefore not accountable to anybody?

Well, of course, my noble friend is speculating. It is hard to believe that the other Chamber would bring forward proposals for the creation of a second House which would so hugely diminish its own powers by bringing in a new electoral system that would then be claimed in the second House to be more legitimate than that in the first; and for a period that was three times as long; for a House that was already widely recognised as being greater in its maturity and wisdom. That would be the greatest case ever of turkeys voting for Christmas.

Should such a proposal come forward, I think that many people in the House of Commons would be very reluctant to diminish their own position, particularly since they have just seen a campaign launched for changing the British constitution—this was the yes to AV campaign—on the basis that MPs were all lazy, cowardly laggards. I think that such a proposal would not be met with universal approval in the House of Commons. I say merely that, if by some mental aberration of that House, such proposals were brought forward and were to concern not only a subject for which one of the criteria had already been put to a referendum—that is, the voting system, which is elemental to the British constitution—but also the abolition of one of the Houses of Parliament and the diminution of the other, each of these individually would be reason for having a referendum. Taken together, there would be an absolutely compelling case for it. I am sure that the Minister in his straightforward fashion, and given that he is a man known for his neutral and objective position in all these matters, will be able to put this to his colleagues, up to and including the leader of his own party, bring it back and reassure us all on it.

Is it not a common feature of the four examples that the noble Lord has suggested that a referendum can be argued for only when it changes the basis upon which those who would otherwise vote for it have been elected? I am personally opposed to referenda in all circumstances, but it could be argued that it is improper for people who are elected on one basis to make huge changes in their own interest and present that to the people. The four examples that he used have that commonality. Would it not be a good thing for Governments, oppositions and coalitions to think carefully before they bring before the Houses of Parliament such changes without a referendum built within them?

I agree absolutely with the noble Lord. There is one condition and qualification which the Minister could bring forward as an objection. He could say, for instance, that it would be entirely unreasonable for us to ask the Government to give a commitment to a referendum on such a subject unless they knew the precise details of the referendum, of the question to be put and so on. That would be a cast-iron argument were it not for the fact that the Government have already rushed to the television studios to assure us that they would willingly accept a referendum on the Scottish question were it put, without knowing the wording, the timing or the conditions of it. So that objection would entirely fall.

I am trying to be helpful to the Minister tonight, not by laying down demands for a definition but by suggesting that there might be criteria which he would like to consider before he comes back to the House. Whether it is a White Paper that we have to expect or a grey paper—perhaps by tomorrow morning it will merely be an essay on the British constitution that is being proposed—and whatever the form of the coalition agreement’s operational eminences which exude from discussions in Cabinet, I hope that he will be able to come back and tell us that it is such an important subject that we will all get the chance to vote again, because we so enjoyed the last referendum.

My Lords, the key point has been made, but not yet by me. I want to reinforce what the noble Lord, Lord Grocott, said. Many of the measures being brought before us are premised on the assumption that our political system is broken. Like the noble Lord, I do not accept that it is and there is empirical evidence for showing that the people do not accept it. I accept that there is a crisis of confidence, but it is a crisis of confidence not in institutions but in politicians. There is a danger of displacement taking place here, of saying, “Well, it is not us, it’s the system. We’ll change the system”. There are problems in that, so I accept the premise on which the noble Lord is proceeding.

My fear is that we may get ourselves into a situation where people do think that the system is broken if we keep messing about with it and making disparate changes without any clear rationale for them, rather than individual changes. If the Government start having a referendum on one issue which they feel for whatever reason there should be a referendum on, but then deny it on another issue which people think is important and there should be a referendum on, they will create problems in terms of how people view the system and how it is being operated.

I have always argued against referendums because I have an objection on principle to them; the Government’s problem is that they do not. When they start holding them, they need to have a clear rationale for those occasions when they are clearly appropriate and those when they are not. Otherwise, we create a problem of delegitimising issues, with people thinking, “Well, this is really important, but we’re not going to accept it unless it’s subject to a referendum. Why can the Government have a referendum on A, when we attach real importance to B and we’ve not been given a say on the issue?”. To cope with that, as the noble Lord, Lord Reid, indicated, you need a very clear framework which is transparent and explained to people, so that they know the basis on which the Government are proceeding. You cannot do it on an ad hoc basis. You need clearly to adumbrate the overarching framework or, if necessary, come up with those issues which clearly fall within the framework of necessitating a referendum.

The Constitution Committee of which I am member, as is the noble Lord, Lord Pannick, produced its report on referendums and tried to identify those areas so that we could at least get agreement on them. The Government need to think about what framework they are using for promoting referendums. They cannot do it on simply an ad hoc basis, saying that it is up to Parliament, because Government bring the Bill before Parliament. We need to know why they are doing that, and that they are doing it on the basis of principle rather than political desirability. The more politicians do the latter, the more we run the danger of people starting to worry about what the Government are doing and their trust being lost. It is essential that we maintain that trust. If the crisis of confidence is in politicians, it is up to us to get it right.

My Lords, the noble Lord, Lord Grocott, has served a very valuable purpose, because he has identified with precision one of the main defects in this Bill and so many of the proposals for constitutional change that have been brought forward by this Government and are still to be brought forward.

The essential point surely about constitutional principles is that they are intended to be neutral; they are intended to be objective criteria by which we and the people judge the propriety of the conduct of government. They do so by convention, by practice and, if change is proposed, they do so by public consultation, by pre-legislative scrutiny and by an attempt to achieve consensus. The Government’s inability to identify when a referendum is appropriate—the noble Lord, Lord Grocott, asked the Minister to explain the Government’s position on this in Committee and the Minister was unable to do so—is a manifestation of constitutional reform and change that is being proposed on an ad hoc basis; it is being proposed if and in so far as it is politically convenient for the coalition to do so.

Constitutional change cannot command public respect when the public perceive politicians as using constitutional means such as a referendum—means which are designed to control politicians—as a way of holding a coalition together. One has to do better than that. One has to identify a principled basis for using or not using a referendum. To bring forward constitutional change in this way—without public consultation and without any attempt to identify and then to apply objective, coherent principles on matters such as referendums—leads inevitably not only to poorly drafted, inadequate legislation but guarantees that the legislation, when enacted, will not command public understanding, far less public respect, and ensures that the legislation will remain on the statute book only in the short term.

My Lords, having rashly intervened on the spur of the moment earlier I decided that I had better stay until the end of debate in line with the conventions. I am very glad that I did because, in an old-fashioned phrase, it has been worth a guinea a minute. I shall associate myself later with some of the latter speeches but, first, I should say to the noble Lord, Lord Grocott—who thought that I was trying to embarrass him—that I was congratulating him on his sheer effrontery. I am not sure that the same is not true about the latter part of his remarks about Governments tampering with the constitution with no overall aim because, frankly, this is not the first Government that this charge could be levelled at—and he was a member of the last. However, on the latter point I am in complete agreement with him.

I wish to pick up on the comments of my noble friend Lord Norton, the noble Lord, Lord Pannick, and, not least, the noble Lord, Lord Reid—who made one of the most excellent speeches we have heard in these proceedings—on House of Lords reform. I agree with every word they said. As a coalition loyalist—well, mostly—I hope my colleagues will stop this messing about with the constitution. They have not got an architect drawing up what they want to get out of it, a great deal of it looks as though it has not been thought through and it does not reflect the basic fact that we have a constitution which, by and large, has served the country well and continues to do so, a point made by the noble Lord, Lord Grocott, and which was implicit in other speeches.

Having made those troublesome remarks—I saw my Whip looking at me and wondering whether I really had told him that I would be docile and loyalist this week—I assure my noble friend on the Front Bench that I will be good on this Bill. However, I am not promising that if we go on getting this kind of stuff.

My Lords, I apologise to the House for missing the first few minutes of this debate. However, fortunately, I have heard enough of what has been said since to be provoked into speaking.

Throughout the whole of my parliamentary career in another place I had a passionate feeling that Edmund Burke was right—that Members of Parliament were representatives not delegates—and that there was a danger that the use of a referendum could undermine that basic principle. I therefore have a word of caution about what has been said today, although I agree wholeheartedly with everything that my noble friend Lord Norton and the noble Lords, Lord Pannick and Lord Reid, have said. However, one or two caveats ought to be made, particularly in the light of the recent referendum where the result was rather good. Having said that, it was also in some ways—particularly in London—rather surprising. None the less, if there is any contemplation of future referendums, it is very important to write in provisions both in regard to turnout and majority, and that it ought not to be mandatory in the sense that after the result has been declared it does not come back to Parliament. It is very important that that should be so.

To whatever extent one can limit the range of referendums—I much prefer “referendums” to “referenda”; it is the gerund—we should make sure that the line is clearly drawn. To say, “We will have referendums only on constitutional matters”, will not, I suspect, satisfy one’s constituents. I always explained to my constituents that I was not concerned with what a majority of them might think. I would take account what a majority of them thought but would then take into account the debates which took place in the House of Commons and various other arguments I might hear. Constitutional issue or not, it is still the case that one needs to take other matters into account and not only what a simple majority of the population believes. I have considerable qualms about this.

If you asked what referendums the public would really like to have, I have no doubt that, despite the enormous change in social issues over the past half a century, it is still the case that they would like a referendum on capital punishment—and I have little doubt which way such a referendum would go. Therefore we must be very hesitant about going down the route proposed today. However important the individual issue may be—and to some extent we have mixed up the issue of House of Lords reform—we should consider very carefully the idea of spreading referendums wider and wider.

My Lords, characteristically, my noble friend Lord Grocott has proposed an amendment which has caught the interest and imagination of the House. This has been a very good debate—almost the best in relation to the Bill. I strongly support what my noble friend Lord Grocott has said. My noble friend Lord Reid made a brilliant speech, which indicated what a loss to the leadership of both the nation and the Labour Party he is. I agree with what the noble Lords, Lord Newton, Lord Norton of Louth and Lord Pannick, have said. I think it is important to indicate why we are here. The way that you can change the constitution in this country is simply by an Act of Parliament. By and large, Parliament has been responsible in changing the constitution. Let us take, for example, our attempts to change the role of the Lord Chancellor, which got very short shrift from the House of Lords; there was a two-year delay, and it was substantially changed. The experience of the last 12 months in relation to constitutional reform has indicated a fundamental change in how constitutional reform is looked at by Parliament.

This is the second of three Bills in a suite of parliamentary reform. The first Bill reduced the number of Members of Parliament, which had not been done by Parliament by almost 100 years, because it was thought that it should be dealt with by an independent group. It proposed and passed a referendum on AV, which no political party wanted—save, possibly, the Liberal Democrats, faute de mieux—and the public did not want. That change was not introduced on the basis that people thought that it was the right thing to do for the constitution; it was introduced as a result of a deal done between two political parties. Parliament passed it, so Parliament in effect was willing to give approval to something that was not in the interests of the country, necessarily, but reflected what two political parties wanted. The reason Parliament did that, inevitably, was that unusually, because of the coalition, those two political parties controlled both the Commons and at that stage the Lords.

I am sure that the noble and learned Lord will want to complete the picture and remind the House that the proposal for a referendum on AV was also in the Labour Party manifesto at the last election. He seems to have ignored that fact.

I do not know whether the noble and learned Lord noticed, but we lost the election. In a sense, I would not have been able to say that we would have had much credibility in putting that forward as the losing party—but you might think that that illustrates my point. The AV referendum was defeated, and the party that proposed it was defeated; the Liberal Democrats did not propose it and the Tories did not propose it. Because of the deal that was done and because of the influence that the coalition has on both Houses of Parliament, it is possible for such a constitutional change to get through both Houses of Parliament. An even more interesting point is that I do not think, although the noble and learned Lord will know better than I, that the AV constitutional change—if we ignore the referendum result for the moment—would have actually passed through Parliament; the only way that an attempt could be made to get it on to the statute book was by using the referendum route. The Conservatives would not have voted for it and half of my party would not have voted for it; all the Liberal Democrats would have voted for it, but I do not think that that constitutes a majority.

Most countries have some sort of entrenched or embedded position to protect the constitution, because most countries believe that if their constitution is working it should be more difficult to change it than other provisions. The heart of our constitution is in our democratic arrangements, such as how long Parliaments last, how we elect Members of Parliament, how we determine what the constituencies are and how many constituencies there are. All those arrangements have been fundamentally changed by the first two Bills, except that the AV referendum was defeated. The significance of the defeat in the AV referendum is that it indicates that the public are not interested in, or particularly keen on, a particular change in those particular systems. Before this series of Bills was introduced, my inclination would have been to be more trusting of Parliament to stop changes that go to the heart of the constitution and do not have popular support. Inevitably, in the light of what the coalition has done, one’s faith in Parliament’s ability to resist, because of the coalition, goes down.

The importance of what my noble friend Lord Grocott is proposing in this amendment, which I doubt he will push to a vote—but it is an incredibly important debate to have—is that, if parliamentarians are prepared to play with the constitution in the way that the coalition has done, as simply a counter to be given away in order to get into power, Parliament needs to look at how you protect the constitution against backroom deals in smoke-filled rooms. I am not aiming that particularly at the Liberal Democrats or the Conservatives; I am saying what the consequence is of coalitions.

I end with a reference to the noble Lord, Lord Tyler. I do not know whether noble Lords remember the excellent contribution that he made to the Parliamentary Voting System and Constituencies Bill, but he was an enthusiast for all of it. I happened to read in my Observer after the AV thing was lost, where the noble Lord said words to the effect that, “Now the AV vote has been lost, I should remind the Conservatives that there still yet needs to be a vote on the new constituencies that are being drawn”. I took that to mean that it was all basically politics that was going on, that it as just a deal that was done, and that if the Liberal Democrats did not get AV they might look askance at what they had previously said was a major constitutional change. I understand why constitutional change. I understand why the noble Lord did it, but does that not suggest that we need to build in a few more protections in relation to major constitutional change? It would appear that this House, which has previously been good at stopping major constitutional change, is now faced with a coalition that has not viewed constitutional change with the same degree of responsibility as previous Governments.

I take the point made by the noble Lord, Lord Newton. He is absolutely right that from time to time we did propose constitutional changes, but we got drawn up short by Parliament. That has not happened with this suite of constitutional measures. That is what my noble friend Lord Grocott is saying needs very careful thought. It might not be a referendum that is needed, but something is certainly needed to give a bit of strength to Parliament to resist the possibly politically motivated constitutional changes that the coalition has brought forward—as opposed to in the national interest.

I wonder whether in the course of his rewriting of history, the noble and learned Lord could just indicate which proposals for changing our constitution during 13 years of Labour Government, many of which he himself was responsible for, he ever suggested should be put to the public in the form of a referendum.

The Welsh Assembly, the Scottish Parliament, the Mayor of London—those are the ones that come to mind immediately.

I was out of the Chamber so I did not speak, but in the light of the noble and learned Lord’s response to the noble Lord, Lord Tyler, will he comment on the fact that the three referendums that he described were all done one after another—and one had the sense that the policy was being made up as they went along. Only when those three had been done were we allowed a referendum Bill itself.

I think that the referendums Bill came between those on Scotland and Wales and the London Mayor, but I may be wrong about that. However, I agree with the underlying thrust of the question. Once we started on the route of referendums we realised that we needed some principles, but those principles guided only the process for a referendum; they did not determine when there should be a referendum and when there should not. Maybe it is that issue that we now need to move on to.

My Lords, before my noble and learned friend sits down, may I draw to the House’s attention that there was also a referendum in Northern Ireland?

Thank you very much indeed for that. I also draw to the attention of the noble Lord, Lord Tyler, that there was also the referendum on a north-east regional assembly. No doubt before I leave the room there will be 53 other referendums that I shall refer to.

First, my Lords, as I think the noble and learned Lord, Lord Falconer of Thoroton, said, we owe a debt to the noble Lord, Lord Grocott, for moving his amendment and stimulating an interesting and thought-provoking debate. The noble Lord, Lord Grocott, said that he was not going to move or speak to his Amendment 23 regarding your Lordships’ House. Although he did not, it was certainly the subtext of a number of the contributions—and sometimes not even the subtext, as the clever speech made by the noble Lord, Lord Reid, indicated. When I listened to what he was inviting me to do or not to do, phrases such as “Greeks bearing gifts” seemed to come to mind from time to time. However, there will be ample opportunity to reflect on the issues in relation to the future of your Lordships’ House over many weeks and months to come.

I also disagree with my noble friend Lord Cormack, who sweepingly said that we were all glad with the result of the recent referendum. Not all of us were glad, but we will let that pass. However, the noble Lord, Lord Grocott, started by asking why there had not been a Statement. While I was not glad with the outcome, as a good democrat I accept the will of the people; indeed the noble and learned Lord, Lord Falconer of Thoroton, suggested that that would have been the content of the statement. Indeed, the legislation provided for what would happen whether the will of the people was for a yes or a no vote.

In Committee, I think that the noble Lord, Lord Grocott, suggested that we might have a referendum on the question of four versus five years whereas, by contrast, this amendment is more fundamental. It asks the electorate to decide whether the Bill as passed by Parliament should be brought into force and to have a legitimacy threshold of 40 per cent. Clearly, that would require further primary legislation as no provision is made in this amendment. It is obvious from the important discussion that we have had—and the noble Lord’s amendment reminds us—that while questions of referendums are of considerable constitutional significance, the referendums themselves tend to be very rare.

My noble friend Lord Higgins reminded us of the Burkean principle: we have a system of representative democracy and Parliament is entrusted with the power to make many important decisions on behalf of the people of this country. There must therefore be an exceptional reason to ask the people a direct question in a referendum. I rather suspect that most of your Lordships would subscribe to that view. It would be particularly unusual in the context of this Bill, given that it does not seek to give the Government or the Executive any additional powers but, rather, seeks to take power away from the Executive to strengthen Parliament. It will be Parliament that is strengthened by this; this Bill takes away the power of the Prime Minister to call a general election at a time which may be propitious for his own party. However, some important questions have been asked regarding the context and what might trigger a referendum.

The noble Lord, Lord Grocott, asked a number of questions. He asked what public indication there had been of support. In a letter to the Constitution Committee, my honourable friend Mr Mark Harper, the Minister, indicated that a survey conducted by Populus for the Times, published on 30 May 2009, found that 74 per cent of those surveyed supported the establishment of fixed terms. A poll conducted by ICM Research for the Sunday Telegraph, published on 26 May 2010, found that 63 per cent of those surveyed supported their establishment, and a survey conducted by the Scottish Youth Parliament in August 2010 found that 76.4 per cent of young people surveyed were in favour of establishing a fixed term for the United Kingdom Parliament.

The noble Lord also asked about the number of general elections that there would be. That is not as straightforward a question to answer as it might superficially appear because it would depend on how many occasions the provisions for an early election were triggered, if at all. We cannot by any stretch of the imagination work out how many that would be but it is important, too, to recognise that there are many ways in which we engage the public in the political process. We discussed some of those issues last week.

Your Lordships’ Constitution Committee examined the use of referendums in the previous Session and, while noting that referendums may become part of the United Kingdom's political and constitutional practice, it also identified the fact that there were a number of significant drawbacks. It indicated, however, that it was likely that some fundamental constitutional issues would be determined by means of referendums. A fixed-term Parliament was not one of those listed. The noble Lord, Lord Reid, said that he did not necessarily expect a full or comprehensive reply this evening. However, I will ensure that the comments made by all your Lordships are considered by my ministerial colleagues who are involved in the field of constitutional change.

We may also want to reflect on this: inevitably, even if we were to make a distinction between what might be “fundamental”—the word used by the Constitution Committee in its report—and what might be significant, it will be a matter of judgment for Ministers concerned. It is interesting that when the Constitution Committee was working on an inquiry undertaken during the life of the previous Government—I was a member of that committee at the time—it put this response from the previous Administration into paragraph 95 of its report:

“the Government have argued that ‘the decision as to whether or not a referendum should be held should be made on a case-by-case basis. We do not believe that an objective test could be established as to the circumstances in which a referendum should and should not be held’.”

That was the position of the previous Government, who advocated, as I indicated, a referendum for changing the voting system to the alternative vote in their manifesto but did not recommend one in connection with introducing a fixed-term Parliament.

As I thought about the party opposite when it was in government, I noticed that the noble and learned Lord did not mention in reply to my noble friend Lord Tyler that there was no referendum on freedom of information or on the incorporation of the European Convention on Human Rights into our domestic law. I do not recall that we were urging him to do that at the time but those were clearly important, constitutional measures. Neither was the change to establish the Supreme Court—a fundamental issue regarding the separation of powers—the subject matter of a referendum. Thinking about the arguments while they were going to and fro, it occurred to me that the only way that you would ever get the absolute definition and clarity which so many noble Lords called for was, possibly, through a written constitution. Indeed, I note that the Constitution Committee itself said:

“A written constitution could provide a more precise definition of a ‘constitutional issue’, and define which issues required a referendum before any change. The arguments for and against introducing a written constitution are outwith the scope of this inquiry”.

They are also outwith the scope of this debate and it is certainly not the policy of the Government to have a written constitution. However, I rather suspect that if we ever did have one it should be the subject of a referendum. The point there is: if you are ever to get the clarity without it having to be a matter of judgment by Governments of whatever hue—a coalition or a majority party of red, blue or yellow—it would inevitably then be the subject of a decision on their part as to what did or did not reach that level of importance.

I hope that I have indicated that there may be a distinction for the fundamental level. For example, the abolition of the monarchy or the secession of part of the United Kingdom are clearly of that level. As I have indicated, we do not believe that a fixed-term Parliament falls into that category. The previous Government of the Labour Party did not appear to think that it fell into that category either. In the whole plethora of measures that were brought in through the CRAG Act before the last election, I think only the possibility of having AV was going to be subject to a referendum.

The Minister appeared to me to indicate that were part of the United Kingdom to secede, that should be the subject of a national referendum. Did I misunderstand him?

My Lords, if I might clarify I think I said that that was one suggestion put forward by the Constitution Committee. It said that that might be one of the occasions that would trigger a referendum but it is certainly not the policy of this Government to have a referendum on Scottish independence. The Prime Minister has made it clear that that would be a matter for the Scottish Parliament. Let me make that point very clear: it was one of the cases suggested by the Constitution Committee as, possibly, reaching that threshold. This illustrates the point that these are inevitably subjective issues. Any Government who wished to make a distinction about fundamental significance would find that that could vary from Government to Government. However, I undertake that the comments made by your Lordships will be fed back, and I am sure that there will be other occasions when the issue of referendums is discussed. A number of colleagues who talked generally about referendums did not necessarily think that the subject of fixed-term Parliaments lent itself to a referendum. Against that background, I ask the noble Lord to withdraw his amendment.

My Lords, I am not just being polite when I say that I am grateful to everyone who has taken part in this short—well, not so short—debate. I was straightforward with the House in saying that I was introducing the amendment not with a view to the House reaching a decision on it, but because I felt that it was important that the House should have an opportunity to reflect on the fact that a major referendum had taken place on a major constitutional issue and that lessons could be learnt.

Many people have contributed; there have been nine contributions. The Minister said at the end, as I was going to ask him to do, that he would take the views that had been expressed back to his colleagues. Normally it is mere politeness to say that but I really would recommend him to do so; he does not have to include my remarks, but if he includes the other nine contributions in the evidence that he takes back to his colleagues, it might even make them think again about this whole, not overly related programme of constitutional reform on which the Government seem to have embarked.

The contributions were terrific. It is impossible to summarise them, although it is fair to say that there was widespread concern about the way in which these constitutional changes are being taken through Parliament without in all or any cases, as the noble Lord, Lord Pannick, has said, proper pre-legislative scrutiny, proper consultation with the public or any proper attempt to get widespread agreement before any move is made. I hope that some lessons have been learnt from that.

I have to respond particularly to the noble Lord, Lord Newton, who chided the previous Labour Government for the various constitutional changes that we made. I am not sure that I need quite the same defence that I was preparing; I was amazed when it was pointed out how many referenda that there had been on various aspects of the previous Labour Government’s constitutional reforms. I say to him that it is a different situation when a Government are returned with the clearest possible manifesto commitment—in Scotland and Wales particularly, there is absolute clarity about the commitment there—and a large majority.

I can tell the noble Lord, in the privacy of this meeting, that there were some constitutional changes that we could seriously have done without; I mention in passing the decision to change the electoral system for the European Parliament from first past the post to proportional representation. I am even more convinced now that, had that been put to the public rather than unilaterally decided by Parliament, we should have a splendid first past the post system for the European elections as well.

Encouraged by that response, I might bring forward a Bill to provide for just that.

There are various other contributions that I really ought to refer to. I must respond to what the Minister said. On public support for the proposal, he needs to be cautious about relying on opinion polls on what the people think about constitutional change. If my memory is not mistaken, there were large majorities in opinion polls—how they were determined, I am not quite sure—in favour of a change in the voting system. We were repeatedly assured by the Liberal Democrats but we, the politicians in all parties, particularly the Conservative and Labour parties, were convinced that the public did not particularly want a change in the voting system. What the sampling of the pollsters was I am not sure, but be wary of that as a basis for making constitutional change.

Once again, the Minister evaded the question—I suppose he has to—about actually confirming that the Bill will mean that the electorate, the people of this country, are consulted less frequently in general elections. There will be fewer general elections as a result of the Bill. The right reverend Prelate the Bishop of Chester put it brilliantly, if I may so: if we were going to change the interval between elections from five years to six, of course the public would need to be consulted on that, whereas we should be under no illusion whatever that the Bill increases the period between elections on average from four years to five. That is the seriousness of what is being suggested.

I have even heard a Minister—I think it was the Deputy Prime Minister—say in defence that the period between elections has historically been about five years if you eliminate the very short Parliaments. Well, if you eliminate all the Parliaments under five years, obviously the average is going to be five years. I did not major in maths or anything, but that is probably true.

I think that I speak for the House if I say that the masterly contribution, the coded warning to the Government, came from my noble friend Lord Reid. Constitutional reform is probably about the only aspect of our national or international policy for which he was not at some stage responsible as Secretary of State; he seems to have done pretty well everything else. I was glad to hear his views on the subject expressed so clearly. It was particularly relevant that he reminded us that the referendum that was my reason for introducing this amendment did not simply say no to the alternative vote; it was an affirmation of public support for first past the post. I agree strongly with him that, should that come up in any guise in the document that we eagerly await on Lords reform, it would be an insult to the public if there were a suggestion that any other kind of electoral system should apply in any reform to the House of Lords.

Like the noble Lord, Lord Cormack, I stand corrected. I must not call it “reforming” the House of Lords—it is abolishing the House of Lords and, to put it neutrally, replacing it with a very expensive senate. I understand that that is what is being proposed, but we will know soon enough.

My noble friend Lord Howarth reminded us again that there is consistency in the Government’s position on constitutional reform, certainly with regard to the previous Bill and this one: in both cases they are diminishing Parliament rather than strengthening it. This Bill clearly diminishes it by making it less frequently refreshed by the electorate. Those of us who are ex-MPs understand that, essentially, you just know that you need an election after a period of time and that you need to have your mandate refreshed, let alone anyone else’s. It is difficult to argue that the Bill on parliamentary constituencies does not weaken the link between the electorate and the House of Commons, because it makes constituencies bigger. The Commons cannot be strengthened if you are making constituencies bigger, so presumably that weakens it. This is one of the many reasons why I was opposed to both the Bills that have come before this Parliament.

I will not trespass on the patience of the House any longer. I found myself wanting to say how much I agreed with pretty well everyone who contributed to the debate, and the Minister would be doing a service not just to this House but to his Government if he reported to them the feelings of this House on constitutional matters of the kind of magnitude that we are discussing, and how—to put it gently—not enough thinking has been done about them. With the leave of the House, I beg leave to withdraw the amendment.

Amendment 22A withdrawn.

Amendments 23 and 24 not moved.

Amendment 25

Moved by

25: Clause 7, page 4, line 6, at end insert—

“(4) Sections 2, 3 and 6(3) shall have effect only until the first meeting of the new Parliament after the next parliamentary general election, but that Parliament or any subsequent Parliament may bring those sections back into force for the Parliament’s own duration and until the first meeting of the following Parliament if a resolution to that effect is approved by each House of the Parliament in question.”

Amendment 25 is clearly linked as a package to the suite of amendments that the noble Lord, Lord Pannick, spoke to on Report on the first day. While it is not strictly consequential, the Government nevertheless believe that it would be unnecessary to divide the House on this, triggering a Division. However, we have made our position clear that we did not support the amendment, and we reserve our right to return to the issue at a later stage.

Amendment 25 agreed.

Statement of Changes in Immigration Rules

Motion of Regret

Moved By

That this House regrets that changes to the rules relating to the victims of domestic violence in the Statement of Changes in Immigration Rules (HC 908) remove the protection granted by the Rules to some victims who may therefore be forced to remain in the abusive relationships on which their immigration status depends.

My Lords, this is the second time in a week that we have debated a statement of changes in the Immigration Rules only after they have come into force. The changes in this statement, correcting the drafting errors in HC 863, which your Lordships debated last week, came into effect on 6 April, and the rest of the changes that we are now debating came into effect on 21 April. Therefore, if the Government accept any criticisms of these changes, they would obviously have to be dealt with in a further statement at some point in the future when the faulty provisions had already been in effect for some time. This must have been the reason for the convention that changes are laid before Parliament at least 21 days before they come into force. That gives time for errors, or rules that are deemed to be wrongful by the House, to be corrected by a further statement. I am sorry that our Government should assume that, whatever we may say about this statement this evening, it will not be of sufficient weight to require any change in the wording. The 21-day convention should be respected and I hope that the Minister will confirm that what has happened in this and last week’s statement will not set a new precedent.

The statement has come in for even more severe criticism from the Merits Committee than last week’s. There is no impact assessment when the Government’s own impact assessment guidance says that one must be formally produced and published when a proposal enters Parliament. I read that as being the date on which the proposal is laid before Parliament which, in this case, was 31 March. Since the impact assessment is a continuous process, as the guidance emphasises, the excuse that it has been waiting for the approval of the Regulatory Policy Committee is unacceptable. An interim IA should have been published on 31 March and replaced by a final IA in time for this debate. I ask my noble friend to agree that this is the practice that will be adhered to without fail on all future statements of changes to the Immigration Rules. It simply is not good enough to say, as my noble friend Lord Attlee did in his letter of 26 April dealing with matters raised when we discussed the fees regulations on 29 March, that:

“We will publish an impact assessment of the Tier 4 changes in due course”.

The Merits Committee points out that the code of practice on consultation provides that, in normal circumstances, consultation should normally last for a minimum of 12 weeks, and that where the period of consultation extends over a holiday period—such as the Christmas and New Year breaks, as this one did—consideration should be given to a longer period for consultation. This consultation ran from 7 December 2010 to 31 January 2011, allowing only eight weeks for stakeholders to respond. The Explanatory Memorandum mentions the consultation in one short paragraph, but without explaining why the normal period was cut by a third in circumstances that would be expected to command an increase.

The questionnaire featured 19 questions, most of which required a simple yes, no or don’t know answer. This provided a useful picture of the extent to which respondents agreed with the proposals. However, there were six questions asking respondents to elucidate the first response or to offer alternative proposals and, as the Merits Committee says, there is no analysis of these replies. On the whole, respondents agreed with the Government’s proposals, two exceptions being the requirement that a student should return home to apply, and further restriction on a student’s right to work. Most respondents disagreed with the proposal on the minimum level of study offered for standard sponsor licence holders. Can my noble friend say how the responses are reflected in the final shape of the changes, and will she provide written answers to the questions in paragraph 27 of the Merits Committee report?

I now turn to the major problem with this statement, to which the Motion refers: that it removes the protection afforded by the rules to some victims of domestic violence who may therefore be forced to remain in the abusive relationships on which their immigration status depends. Paragraph 289A provides that, during the probationary period, an immigrant’s spouse or civil partner who is the victim of domestic violence may be granted indefinite leave to remain if she can establish that the relationship has broken down as a result of domestic violence. However, this statement says that she must also be free of unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. According to the Immigration Minister’s letter to the chairman of the Immigration Law Practitioners’ Association of 4 April, the number of people admitted under paragraph 289A is about 700 a year, and he added that the vast majority of these have no criminal convictions. I will come on to that point later.

The Secretary of State, Theresa May MP, has repeatedly affirmed that she wants to end all forms of violence against women and girls, and on International Women’s Day she published an action plan for the purpose, which met with universal approbation. This statement is incompatible with the Secretary of State’s approach, because it will lead to women being trapped in abusive relationships, as I believe that officials have already acknowledged. Their argument is that the number of cases is likely to be small and can be dealt with by considering whether settlement should be granted outside the rules.

Relying on the UKBA to identify cases that are eligible for a discretionary grant of ILR outside the rules is unsatisfactory in the light of the appalling record of bad decisions under the domestic violence rule. The NGO Rights of Women established that, in the six quarters from April 2009 to September 2010—the latest available figures—the proportion of refusals under the domestic violence rule that were overturned on appeal varied between 61 and 69 per cent. It says:

“The fact that applicants in domestic violence rule cases are so much more likely to be successful on appeal than applicants challenging other immigration law decisions indicates a problem with the UKBA’s understanding of domestic violence and how it applies the rule”.

I put it differently. The culture of disbelief concerning violence against women has obviously infected the UKBA to such an extent that it would not be safe to leave it to decide when to grant settlement to a person who has committed a minor offence, or even a major offence, arising from an abusive relationship.

We accept that the number of people who are likely to be affected is small, and we now know from the Home Secretary's letter to Rights of Women, which was sent at 1 pm this afternoon, in reply to the 106 organisations which oppose this provision, that there has not been a single case under rule 289A where the applicant had an unspent conviction. However, as the Government declare in their call to end violence against women and girls, no level of violence against women and girls is acceptable. We suggest that the default solution should be to disregard their convictions. In the case of a particularly serious crime, the Secretary of State already has the power to refuse an application for leave to remain on the grounds of,

“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his character, conduct or associations or the fact that he represents a threat to national security”.

That comes from rule 322A, which is quoted in the Home Secretary’s letter.

In any case, a victim who has an unspent conviction is likely to be deterred from applying for settlement because she has no guarantee that sympathetic consideration will be given to a discretionary grant of settlement on the grounds that the offence which led to her unspent conviction was related to the abusive relationship. Examples were given in the letter to the Secretary of State from 106 NGOs working on this issue. I understand that Home Office officials appeared to accept the NGOs’ submission that some women may not come forward because they will fear that the mandatory requirement to refuse an applicant who is otherwise qualified under rule 289A is likely to be applied to them, whatever may be said in the guidance.

Officials also agree that there is an incompatibility between the unspent convictions requirement and the Government’s absolute commitment to end violence against women and girls. That is why the matter was put to the Home Secretary after the meeting between lead NGOs and officials on 20 April. The Home Secretary now says that it is accepted that the two commitments are very delicately balanced and that the key is to allow for a woman to separate her life from her abusive husband. No doubt the NGOs will take up the offer to help develop guidance to staff who consider the applications under the domestic violence rule faute de mieux. However, they will do so with great concern that their unanimous advice to start from an unblemished rule on domestic violence has been ignored. I beg to move.

My Lords, I shall speak to my Motion, which,

“regrets that Her Majesty’s Government have not made sufficient information available to judge whether the Statement of Changes in Immigration Rules (HC 908) is likely to achieve its policy objectives”.

In speaking to this general debate on the two Motions, I say first that the Motion of the noble Lord, Lord Avebury, raises some very important points about the effect of the changes on survivors of domestic violence and the negative impact on the Government’s commitment to end violence against women and girls. In particular, there is an inconsistency, as he pointed out, between the Home Secretary’s statement on domestic violence and the consequences of this statement of changes. Even if the number of cases is likely to be small, there is clearly a matter of principle to be discussed here.

My own Motion arises from concerns that a statement of changes has been laid without an impact assessment. As a result of this lack of information, the Merits Committee has drawn the statement of changes,

“to the special attention of the House on the grounds that it gives rise to issues of public policy likely to be of interest to the House and may imperfectly achieve its policy objectives”.

The noble Lord, Lord Avebury, has already referred to this point and I want to emphasise the points that he made.

Clearly, there are several important questions that remain to be answered, and the Merits Committee has identified eight or nine of them. I will not read through its list of questions—I have no doubt that the noble Baroness is well able to answer them—but there are two or three that I would highlight. First, will the changes contribute to reducing abuse of the student immigration system? Secondly, what will be the costs and benefits of the changes for the education sector? We have debated at Oral Questions and on Statements on several occasions over the past few months the impact that this is likely to have on the education sector. The noble Baroness will be aware that the Opposition’s concerns have very much focused on the unintended consequences for several of our educational institutions. I should be glad of some further information about this.

A third specific question for the noble Baroness is what impact the changes will have on the UK economy. When these proposals were first set out by the Government some months ago, we understood that several countries were gleeful at the thought that students who would have come to the UK would now go to those other countries. We are in a competitive situation. We are talking about the kind of students that we need to attract to our country.

The noble Baroness will probably be aware that I have a background in the health service. There is clear evidence that overseas students who come to our medical schools and go back to their own countries continue to maintain important links with the UK, which has had real benefits for the stimulation and sharing of medical knowledge, and the ability of British companies to sell their goods to other medical systems. I am very concerned that these changes could impact on the ability of our country to do business with other countries, and about the more general economic impact that that will have.

We then come to the core of the concern. The Explanatory Memorandum states:

“A draft Impact Assessment of the changes to Tier 4 has been prepared, however it is awaiting final clearance by the Regulatory Policy Committee. The Impact Assessment will be published in due course, once it has been finalised”.

We now know from a further report by the Merits Committee that,

“The UK Border Agency … has now confirmed that they do not intend to publish the IA until June”.

The statement of changes came into effect on 21 April. We were given it without the impact assessment, which we are now not to have until June. The Merits Committee considers this approach “highly regrettable”. The noble Lord, Lord Avebury, said that it is quite unacceptable. I agree. I am sure the Regulatory Policy Committee is a very august body, to which I defer and pay due acknowledgement. However, it takes the biscuit that this committee has to deliberate for months before Parliament is allowed to see the initial work on the impact assessment. This is unacceptable.

I say to the noble Baroness, whom we are all delighted to see in her place, that the Home Office has previous form in this area. Indeed, on 3 May we debated the statement of changes in Immigration Rules HC 863. The Government were rightly criticised for not publishing a comprehensive explanation of the findings of the consultation on that statement. These debates are valuable. I hope the noble Baroness will be able to provide some assurance that the points are taken to heart by her department, and that when there are future statements rather more information will be given.

The previous time we debated this, I am afraid I went down the cul-de-sac of discussing statutory instruments and House of Lords reform. I certainly do not expect the noble Baroness to respond to me if I go down that route again. I do not intend to push this to the vote and I doubt the noble Lord does either. However, it will be a pity if tomorrow, in the Statement, the draft Bill and the White Paper, very little is said about the powers of a reformed second Chamber. One of the reasons why I am a little doubtful as to whether the Government’s House of Lords reform proposals will make considerable progress is the failure to tackle the issue of powers. I have no doubt that, were this House to be 80 per cent or 100 per cent elected, the noble Lord and I would not hesitate to put this to the vote tonight. We would certainly feel that we had the legitimacy to do so. I do not expect the noble Baroness to join me in that debate. However, the day before we get the Statement, it is irresistible. I am glad to support the Motion of the noble Lord, Lord Avebury.

My Lords, I follow my noble friend Lord Avebury in his comprehensive introduction to our reasons for raising this matter tonight—the problems that we envisage in the changes and their impact, particularly on women who may suffer through domestic violence. I shall confine my remarks to that and I will not keep the House too long.

I welcome the Government’s announcement that, from 1 April next year, women on spouse visas who experience domestic violence will be able to access mainstream welfare benefits for a short time while their application for indefinite leave to remain is decided by the UK Border Agency. This is extremely positive. It is in line with the Call to End Violence against Women and Girls action plan launched by the right honourable Home Secretary a few months ago. It included a commitment to finding long-term solutions to support those who have had no recourse to public funds. As we have heard, last week she restated her commitment that domestic violence must be taken seriously. However, my big concern about the statement of changes is, as set out by noble friend Lord Avebury, about the impact and, indeed, the unintended consequences of these changes as they apply to women in abusive relationships. We fear that those women may not come forward as a result of these changes. We know that women in abusive relationships are vulnerable—that is a given—and often do not come forward for a considerable length of time. Those women already live here and are British, but imagine women in these circumstances for whom their immigration status is an additional factor. They are even more vulnerable and subject to abuse.

We know that half the women in UK prisons say that they have suffered domestic violence. We also know that perpetrators of domestic violence often make false allegations about the victims of abuse to the police, which can result in criminal proceedings and possibly a conviction. The convictions cited could be for minor offences. I will give an example. As I mentioned in the debate we had some time ago on International Women’s Day, I set up the first domestic violence project for women with a Turkish and Kurdish background in Hackney and Islington nearly 20 years ago. I saw the full range of abuse suffered by the women whom we helped, in all its horrors. Many of these women were often too scared to come forward and get help because of threats from other family members and for fear of being ostracised by their immediate community if they reported their abusive partner to the police. For example, a woman may be trapped at home looking after her children and be totally reliant financially on her partner. He could refuse to give her money to buy food. I know that such cases have happened. I have dealt with a similar case where, in these terrible circumstances, a woman who took food from a shop—she stole food to feed herself and her children in a quite desperate situation—went on to receive a conviction for shoplifting. These already vulnerable women would be further disadvantaged if a minor caution or conviction, such as the failure to have a valid TV licence, became a deterrent to seeking help. I have dealt with a lot of these heart-rending cases. One involved a woman who finally found the courage to report her violent partner to the police only to be murdered on the streets of Hackney after he had been let out on bail the next day, without her being informed.

The UK Border Agency has said that it will continue to provide leave when needed to help protect women and girls. However, there remain huge concerns that this is insufficient, and that the rules will deter women from coming forward. We have already heard about the quality of some of the decisions taken by the UK Border Agency, and this is another big factor. In light of this, the wider context and the evidence that we are hearing and know about on the ground, I would ask my noble friend the Minister to reconsider this issue and to take it back. It does, and will, affect a relatively small number of women who are victims of domestic violence, but surely protecting all women must be our paramount concern.

My Lords, I thank the noble Lords, Lord Avebury and Lord Hunt, for the opportunity to debate these Motions. A large number of points have been raised and I will do my best to deal with the issues to which they give rise.

The Motions before us deal with two distinct subjects: changes to the rules relating to domestic violence, which were addressed by the noble Lord, Lord Avebury: and changes to tier 4 of the points-based system, which are covered by the Motion of the noble Lord, Lord Hunt. Both noble Lords raised matters of progress on the part of the Home Office and the way in which we have made information available. I hope to deal with that point, which applies to both the noble Lords’ Motions. I will deal with the Motions in turn, starting with the Motion of the noble Lord, Lord Avebury.

Domestic violence is an important issue. The noble Lord is quite right to say that it is an area where the Government are only too well aware that we need to balance two equally important principles: first, that residence in the UK is a privilege reserved for those who can make a positive contribution to the UK and abide by its rules; and, secondly, that victims of domestic violence should be protected. We, of course, attach great importance to that.

As has been mentioned, the Home Secretary has made clear the Government’s and her own personal commitment to tackling violence against women in all its forms. Tackling domestic violence is an important part of the overall strategy and we have made clear our commitment to supporting and protecting its victims. Every year approximately 1,200 people, who had come to this country to marry, apply to the UK Border Agency for indefinite leave to remain following incidents of domestic violence, so it is not such a small problem after all. The UK Border Agency gives priority to these domestic violence cases, which are dealt with proactively by specialist case workers. Improvements in the process have ensured that decisions are made quickly and fairly. Currently, more than 62 per cent of domestic violence applications are decided within 20 days. In 2010, leave was granted in 67 per cent of cases.

As has been mentioned by the noble Baroness, Lady Hussein-Ece, some applicants face a particular problem because they are destitute and have no recourse to public funds. When I was first presented with this brief, I too had a lot of questions for officials, particularly around what constituted a minor crime. I share her concern that we have to make sure that we get this right. She gave examples of offences such as shoplifting and the non-payment of TV licences. The Government have recognised the risk that women in this position might feel trapped in an abusive relationship. Because of this we have continued to fund the Sojourner Project to provide refuge places for these vulnerable victims. In just over one year of operation, the project has provided vital support to 725 women and more than 420 children. However, Sojourner is not a long-term, sustainable solution, so we have announced that after April 2012 women on spousal visas in need of refuge places will be able to access welfare benefits while their claim for indefinite leave to remain in the UK is considered. This is a major step—it has been welcomed—in ensuring that this vulnerable group remains protected and safe from abuse. Therefore, I hope that I can reassure the House that the Government’s commitment to safeguarding victims of domestic violence, whatever the changes being made in legislation, is a high priority.

I turn now to the changes the Government have recently made to the settlement rules. Having looked at them as a new Minister and asked a lot of questions, I do not believe that these changes are incompatible with the commitment that we have given to protecting women and girls in abusive relationships. The Home Secretary’s Statement in November 2010 made it clear that there must be an end to the link between temporary and permanent migration. We must be clear that settlement is not automatic—rather, as I have said, it is a privilege to be awarded only to those who abide by the laws of the country. The UK Border Agency has always taken into account the character and conduct of applicants for settlement and other categories of leave. The rules have always provided that leave will “normally be refused” if it is undesirable to permit the individual to remain because of their character, conduct or associations, so in that respect the changes serve to give more certainty to applicants. I take on board what the noble Baroness said about women’s reluctance to come forward. It is a very difficult area, but I hope that this measure will provide more clarity.

The new settlement rules mean that the UK Border Agency will be taking a more objective view about what type of offending should lead to a refusal. That should help where there are areas of uncertainty. They provide a more direct response to the sentences imposed by the criminal justice system. Set against this are the difficult and vulnerable circumstances of women and girls in abusive relationships. We need to get that balance absolutely right and to support them against the equally clear requirement for applicants for settlement to be free of convictions.

In cases where we have a moral duty to protect a victim of domestic violence, I can assure your Lordships that there would be no question of requiring them to leave the UK or to remain in an abusive relationship because of a minor conviction. For example, I would not expect the non-payment of a television licence to be regarded as a major matter of criminalisation. If such a case had arisen previously, the applicant’s behaviour would have been considered under the character test, and there would have been no certainty that settlement would have been granted under the previous rules. As now, the agency would have considered whether to exercise discretion outside the rules. That provision is not being removed.

As to the arguments that the introduction of this new rule introduces or increases the likelihood that a victim of domestic violence would not come forward, I believe that the rules are now much clearer. I hope that the noble Baroness may wish to discuss this matter with me further, and perhaps we may take a closer look at the clarity that the changes should bring. For the reasons I have outlined, I am not persuaded that there is a high risk, or one that we cannot take action to mitigate. I do not doubt that reluctance to come forward exists for many reasons—for example, a mistrust of authorities or the control being exerted by an abusive partner, as the noble Baroness mentioned, but we should not respond to that risk by condoning criminality by domestic violence applicants. It is a question of the balance that I mentioned at the beginning of my speech.

That underlines why the work of corporate partners such as Eaves, which runs the Sojourner Project, and others such as the Southall Black Sisters and Rights of Women is so important. I have seen correspondence and I know that their views are being listened to. We welcome and support the invaluable assistance to victims of domestic violence offered by such groups, and will continue to work with them, in particular to ensure that everyone involved is clear that the UK Border Agency will give the most careful and sympathetic consideration to all the facts in any application affected by the rule change. The individual and the circumstances surrounding them will still be important.

My noble friend Lord Avebury asked for a written response to paragraph 27 of the Merits Committee report. I am very happy to do that and I will of course write to him.

I turn now to the Motion of Regret in the name of the noble Lord, Lord Hunt. The issue at hand is whether the Government should have published a more comprehensive analysis of the outcome of the student consultation. The noble Lord referred in particular to the 29th Report of the Merits Committee, which states:

“The Statement has been laid without an Impact Assessment—the Explanatory Memorandum … says that one has been prepared but is awaiting final clearance by the Regulatory Policy Committee. There are also significant gaps in the analysis of the consultation responses”.

Your Lordships will recall—and it has already been mentioned—that there was a debate on similar issues in this House on 3 May in the context of the debate on the consultation on limiting economic migration. The statement of changes relating to the student consultation predates that debate and it is therefore unsurprising that the Merits Committee’s reports on the two consultations raised similar issues. However, I should reiterate what my predecessor said during that debate. We are quite clear that it is right and proper to provide the Merits Committee with the information that is necessary for it to do its job. I give my assurance to the House that in future that will be the case.

The issue having been raised, however, it would be remiss of me not to put this again in the context of previous practice in this area. The noble Lord, Lord Hunt, drew the attention of the House to the fact that the Home Office has form in this matter. I gently remind him that that form predates the current Government. While it is generally accepted as good practice, there is no legal obligation on the UK Border Agency to consult on changes to the Immigration Rules, because that does not involve primary legislation.

In March 2010, the previous Government made significant changes to tier 4, the student route, without a formal public consultation. Despite taking the views of key partners, they did not publish any formal explanation of findings. Similarly, in March 2006, following consultation, the previous Government published their policy for a points-based system, but did not publish the 517 consultation responses they had received.

I am satisfied that this Government have gone to great lengths to seek the views of the public and the sector, and to take account of these views in developing our final policy. On 23 November, the Home Secretary informed Parliament that she intended to hold a public consultation on reforming the student visa system. As has already been pointed out, this process began on 7 December 2010, when the Home Secretary announced our proposals and the consultation paper was published. The consultation ran until 31 January 2011, shorter than the standard 12 weeks, in order to announce decisions at a time that would allow the sector and students to plan for the following academic year. Our consultation received more than 30,000 responses—10 times as many as the consultation on economic routes—and officials spoke to representatives of no fewer than 200 institutions during the consultation period. On 22 March, the Home Secretary made a full Statement in the other place setting out the detail of the Government’s decisions and the public reaction and data that had informed those decisions. On 31 April, we published a detailed statement of intent describing the full policy package, and laid changes to the Immigration Rules to implement the first changes resulting from the consultation.

However, the brief window between the closure of the consultation and the announcement of policy meant that at the time that the statement of changes was issued, further work was necessary to ensure that the impact assessment was of high quality and accurate. Work continues and I can confirm that the impact assessment will be published when the next changes are made to the Immigration Rules in June—next month. The Minister for Immigration has confirmed that the impact of these changes will be a reduction in the number of main applicant visas in the order of 70,000, along with a reduction of about 20,000 in the number of dependants. It is true that, like the previous Government, we have not simply published every consultation response. We published a summary of the 30,000 responses to all the questions asked and answered in the consultation. We also indicated the level of support in relation to every response. We felt that this was helpful information for Parliament and interested parties to have.

The Government code of practice on consultation states:

“Following a consultation exercise, the Government should provide a summary of who responded … and a summary of the views expressed”.

I hope noble Lords would agree that that is what has happened. Consideration should be given to publishing the individual responses received but, in this instance, the volume of responses made that impractical. The level of response demonstrates a high level of public engagement with the policy development process, and the changes we have made to our final policy show that we have genuinely listened to and taken account of the views expressed.

We have received positive feedback from the university sector. Perhaps I may now pick up on the point made by the noble Lord, Lord Hunt, about the economic impact. Universities UK said the reforms,

“will allow British universities to remain at the forefront of international student recruitment”.

It is also the case that we will close tier-1 post-study work after 2012, but the brightest and best graduates will still be able to move into skilled sponsored employment through tier 2. The Government recognise the important contribution that international students make to the UK’s economy and to making our education system one of the best in the world. The Government’s aim is not to stop genuine students coming here, with all the implications that that would have for the wider economy, but to eliminate abuse and to focus on the high-quality and high-value sectors.

I am most grateful to all noble Lords who have spoken in this important debate. I gently invite the noble Lords, Lord Hunt and Lord Avebury, who have tabled these Motions of Regret, to consider not pressing them.

My Lords, we are most grateful to the noble Baroness for her careful reply and for answering some of the questions put to her by the noble Lord, Lord Hunt, and me. I am also grateful to the noble Lord, Lord Hunt, for saying that domestic violence is a matter of principle, not of numbers. That is the way that we have always looked at it. It does not matter whether there is only one case, or even none. That still means not that women in abusive relationships were not deterred by the previous set of rules but that they will be more deterred by a mandatory penalty imposed as a result of any convictions.

I am grateful to the noble Baroness for saying that she will give us a written answer to the eight questions posed by the Merits Committee, two of which were dealt with in more detail by the noble Lord, Lord Hunt. He was asking, in particular, about the economic impact of the changes, as did the Merits Committee in the third of its questions. The noble Baroness told us that there will be 70,000 fewer applications as a result of the changes, but she did not then go on to say what the impact of that will be on the economy of the country. Obviously, if there are 70,000 fewer applicants, that means less money coming into universities at a time when they are facing serious cuts to the money that they receive.

I am happy to confirm that the brightest and best students, who have the greatest contribution to make to the UK and our economy, will continue to be welcomed under the student route, but the scheme is looking at the brightest and best, as opposed to the number hitherto.

I think that the noble Baroness is talking about tier 1. We have no objection to the changes made to tier 1. The changes are all to tier 4, are they not? That is where the loss of the 70,000 students will arise, as I understand it.

I am also grateful to my noble friend and the Government for the changes that they have made to allow persons who are waiting for a decision on their application to remain as a result of being in an abusive relationship to claim benefits. We should be very grateful to the Government for that. However, at the end of the day, there is a threat to women in abusive relationships which will deter people from applying.

That was the unanimous conclusion of the 106 organisations which signed the letter, including Rights of Women, to whom the Home Secretary has now replied. I suggest to my noble friend that whatever other discussions she holds as a result of this debate, it will be useful if Ministers would agree to meet a delegation from a representative sample of the 106 organisations, so that she can explain, as she has done to the House today, what is the Government’s thinking on those issues, and perhaps take away with her any further suggestions that they may make. Of course, they will take part in discussion on the guidance but, as I said, the guidance is not necessarily the end of the story. In the past, we have had guidance which appeared perfectly satisfactory on paper, but which has resulted in adverse conduct by the UK Border Agency. The noble Baroness did not quite take the point that I made about the large number of cases of applications which are overturned on appeal, which indicates a systemic disorder within the UKBA in dealing with domestic violence cases.

I am grateful to the noble Baroness, the noble Lord, Lord Hunt, and my noble friend, and I beg leave to withdraw the Motion.

Motion withdrawn.

Statement of Changes in Immigration Rules

Motion of Regret

Tabled by

That this House regrets that Her Majesty’s Government have not made sufficient information available to judge whether the Statement of Changes in Immigration Rules (HC 908) is likely to achieve its policy objectives.

Motion not moved.

European Union Bill

Committee (5th Day)


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