At the conclusion of our debates on the second day in Committee, my noble friend presented a scenario whereby the Government had lost the confidence of the House in a way that did not necessarily trigger the provisions of the Bill. He used as an illustration what might have happened in 1972 if the other place had refused to give the European Communities Bill a Second Reading and it had not been designated by the Speaker as a vote of no confidence. In such a scenario, the Prime Minister might wish to resign or hold an election, and the provisions of the Bill would not necessarily apply. I think it is clear that if the Prime Minister had genuinely lost the confidence of the House of Commons, under the provisions of the Bill there would be a way to make that clear through a motion of no confidence and no other Government being formed by that Prime Minister, so leading to an election. Furthermore, if there was consensus that there should be an election, that could happen with a Dissolution.
Equally, it would still be open to the Prime Minister of the day to resign, as indeed Neville Chamberlain did in 1940. As the noble and learned Lord agreed in the previous debate, it would not have brought into play any of the mechanisms in the Bill. Nevertheless, it was clearly possible for a new Government to be formed under Winston Churchill in two days—I believe that was the figure that he indicated. Nothing in this Bill would inhibit that happening. If the Prime Minister of the day chose to resign, he would tender his resignation to Her Majesty the Queen and the convention would be that, so Her Majesty was not left without a Prime Minister, he would recommend to Her Majesty another MP who would be invited to form a Government. Either that new Government would fail at the first test, there would be a no confidence Motion and the new Government would not be able to get confidence, which would lead to an election; or, alternatively, a new Government might be formed and would command the confidence of the House of Commons. If it commanded the confidence of the House of Commons and could vote a supply, it would be left—
Lord Falconer of Thoroton: My Lords, if we assume the Prime Minister resigns, that does not trigger the Bill. A new person is invited to form a Government. He or she then puts his or her Government to the confidence of the Commons. If we assume there is a vote of no confidence in that Government, then the provisions of the Bill will apply and there will be another 14-day period.
Lord Wallace of Tankerness: My Lords, there would not necessarily be another 14-day period triggered by the first one. Subject to that, the noble and learned Lord’s analysis is absolutely correct. If someone else sought to form a Government and did not win a vote of no confidence, that would lead to an election if no other Government were then formed within 14 days.
I think there is agreement, surprising though it may seem. However, there are two other possible outcomes: that there is a Dissolution leading to an election, or another Government could be formed, the 1924 example being a case in point. As I said, the 14 days is a matter
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Lord Grocott: Can the noble and learned Lord answer this question? It has been raised on a number of occasions but I have never heard a specific answer to it. Under the Bill, if the Liberal Democrats decide at some time in the next four years that they cannot support the present Government, the Government lose a motion of no confidence and, during the subsequent 14 days, the Liberal Democrats decide to support the Labour Party—which would not give many of us a great deal of joy—an entirely new Government could be formed without any reference to the British people whatsoever. Is that the position?
Lord Wallace of Tankerness: It is a very hypothetical situation. Any new Government, as the noble Lord suggests, would have to be subject to a positive vote of confidence. The noble Lord, Lord Grocott, says that they would get it. That does not necessarily follow because clearly the two parties do not command a majority in the House of Commons. It is hypothetical but, if the other Government were formed, possibly involving the Liberal Democrats and the Labour Party, and it commanded the confidence of the House of Commons, which is crucial, the fixed term would continue to its natural conclusion.
Baroness Jay of Paddington: My Lords, I hesitate to repeat the quotation that I gave from the Constitution Committee’s proceedings in the last debate, but surely the answer to the question put by the noble Lord, Lord Grocott, is the one that Mr Mark Harper gave to the noble and learned Lord, Lord Goldsmith, in response to exactly the same question—hypothetical though the noble Lord, Lord Grocott, suggests it is—which was that it depended on the circumstances,
The noble and learned Lord, Lord Goldsmith, asked him whether it could produce a Liberal Democrat and Labour Government, and that was the answer that Mr Mark Harper gave.
Lord Wallace of Tankerness: There is the important qualification that, if we were in a scenario where this Bill was law, it would also require that there had been a vote of confidence in that Government by the House of Commons. Subject to that qualification, I think the answer is exactly as the noble Baroness indicated.
Lord Tyler: My Lords, this is not new. Surely in a parliamentary democracy the Government require the confidence of the House of Commons. If they have that confidence, they can then continue.
Lord Wallace of Tankerness: That is self-evident. One might well go back to 1977 when, quite clearly to forestall losing a confidence vote, the Government of Mr James Callaghan entered into a pact rather than a
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Lord Howarth of Newport: In the scenario that my noble friend Lord Grocott was suggesting, would it actually be necessary under the Bill for there to be a vote of confidence? If the Liberal Democrats had simply decided that they did not wish to carry on in coalition with the Conservatives and made overtures to the Labour Party, there would not have been a vote of no confidence. There would simply have been a realignment within the House of Commons. As far as I can see, the provisions of the Bill are not activated in that situation.
Lord Wallace of Tankerness: I apologise. I had presumed that there had been a vote of no confidence in what would then have been a Conservative minority Government if the Liberal Democrats had left it. In that case a new Government would have had to be formed and there would have to have been a vote of confidence. I am sure that a new Government formed in that way would have to have a Queen’s Speech, which would trigger a potential confidence motion, and if they won that they would continue to govern. As my noble friend said, if an Administration have the support and the confidence of a majority in the other place, they can govern. I apologise if I misinterpreted the question put by the noble Lord, Lord Grocott. I presumed that there had been a motion of no confidence, and that may not have been part of the hypothesis that he put. However, the new Government would be susceptible to a vote of no confidence if they did not have a majority and could not command the confidence of the House. Therefore the procedures in this Bill would then be triggered; otherwise it is as the noble Baroness says.
Lord Grocott: If this game of musical parties were to occur—more specifically, if the Liberal Democrats were to decide which party they wanted to operate with—it would be very difficult for Mr Clegg to continue his argument that this was reconnecting Parliament with the public.
Lord Wallace of Tankerness: If that was the scenario—a purely hypothetical one—I think my party would have a challenging time making the argument as to why things had changed. However, I do not suppose for a moment that the noble Lord—who probably was in the Commons in 1977—complained too much about an arrangement falling short of a coalition with the then Liberal Party, which actually sustained a Labour Government in power. Obviously the Liberal Party had to answer to the electorate for what it did then, and that is the political reality. These things are all considered in a political context. There is the political reality again, taking the point made by the noble and learned Lord, that if a Prime Minister of the day sought to try and abuse or contrive a vote of no
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The period in my noble friend’s amendment is 28 days. He indicated that he took it from the arrangements that had been made for Scotland and Wales in the event of a resignation of a First Minister. There are sufficient differences in the position between the Scottish Parliament, the National Assembly for Wales and the United Kingdom Parliament that would make 28 days an inappropriate period. That is why we have exercised our judgment and said in the Bill that 14 days is more appropriate.
The amendment tabledby the noble Lord, Lord Howarth, would provide that an early general election could be triggered where the Prime Minister has resigned and 14 days have elapsed without the House of Commons passing a motion expressing confidence in a Government. Again, my point would be that in establishing fixed terms, we are seeking to deny the Executive their ability to decide if and when there should be an election. This amendment places one of the triggers for an early Dissolution within the hands of a Prime Minister. That is the problem which we would have with it. The noble Lord mentioned 1951 but it is generally accepted—indeed, I think Mr Jack Straw accepted this on Second Reading—that the circumstances there would almost certainly have triggered the two-thirds majority for Dissolution, because there was common ground that an election should take place. The problem with the noble Lord’s amendment, as I indicated, is that in an effort to try and take away the power from the Executive and put it into the hands of Parliament, it would return it to the Prime Minister.
However, subject to what I said in my opening remarks in response to the constructive point made by the noble and learned Lord, Lord Falconer, and in wishing to look at the important contributions that have been made, I certainly intend to reflect on what has been said in this debate and in earlier debates on the same subject. I have no doubt whatsoever that these matters will be returned to on Report but I ask my noble friend to withdraw his amendment.
Lord Norton of Louth: My Lords, I am grateful to all those who have taken part in this short debate. It has been extremely helpful in elucidating problems with the Bill. On a rather small point, I have to correct the noble Lord, Lord Howarth: it was actually me putting the questions to Mark Harper as I was in the chair of the Constitution Committee on that day, which is one reason I am pursuing the issue today.
I have two points to make to my noble friend Lord Tyler. One is on drafting. It has to be about the Prime Minister resigning, not the Government, because when the Prime Minister resigns the Government go. The other point is much more substantive and relates to what we were saying earlier. Parliament is stronger under the present arrangements than under this Bill, because the key point is that under its provisions the Prime Minister gets a second bite of the cherry if he loses a vote of confidence.
On the observations made by the noble and learned Lord, Lord Falconer of Thoroton, my point is that if the Prime Minister resigns having lost a vote of confidence, formally the Government are out. In those circumstances, the Queen sends to whoever she believes could form a Government. Formally, that could include the outgoing Prime Minister but that is the present constitutional position anyway—one thinks to some extent of the circumstances of 1931. I would argue that what I have put forward is better than what is in the Bill because, as I indicated, my amendments are designed to maintain the benefits of the existing arrangements. However, I very much agree with the noble and learned Lord that they reflect the problems of trying to codify existing conventions. That underpins the problems with the Bill.
I am grateful to my noble and learned friend Lord Wallace for his response. He is quite right that the intention was to take these two amendments together. On his point about the example that I gave of 1972, if Edward Heath had said, “This is a matter where the Government cannot sensibly continue”, but the Speaker had not certified it as a confidence motion and if he had lost and a good number of Conservative MPs were not prepared to vote for Dissolution—not necessarily to vote against it but not to vote for it, so that it would have been difficult to mobilise 400 votes out of 600, although there was a slightly different percentage at that time—then you get into a stalemate.
I am grateful for what he said, particularly because I did not hear any strong arguments against my amendments. The Minister queried the 28-day provision; as he says, there are sufficient differences with the devolved Assemblies. I accept that and would like to apply it to the rest of the Bill.
Lord Wallace of Tankerness: I am interested because I made this point in response to the comments by the noble and learned Lord, Lord Falconer. Will my noble friend accept that there is perhaps this issue? If there is a choice between immediate Dissolution and a resignation with the possibility of another Government being formed, who exercises that choice? In a Bill where we seek to take power away from the Prime Minister, should that choice lie with the Prime Minister or does my noble friend accept that we should look at ways in which what happened would not be the Prime Minister’s choice alone?
Lord Norton of Louth: I do not really accept the premise of my noble and learned friend’s question in that the Bill does not take away the Prime Minister’s power where the Government are defeated on a vote of confidence. The Government are trying to limit the Prime Minister’s prerogative to request Dissolution at the time of the Prime Minister’s choosing, rather than in the context of the Government losing a vote of confidence. The Bill does not actually limit the Prime Minister on losing a vote of confidence; as I say, it gives him a second bite of the cherry. That is what my amendments are really trying to get at. I accept the point made about 28 days or 14 days, which is a matter for discussion, but my point is that to avoid an ongoing stalemate you need some cut-off point. That was the argument of principle there.
My overall proposition is that the benefits of existing arrangements outweigh those in the Bill which, in the context of a vote of confidence, do not limit the Prime Minister. As I say, the Government are trying to limit the Prime Minister’s prerogative to foreshorten an election when it is in the gift of the Prime Minister, rather than when Parliament is in effect seeking to take it out of the hands of the Prime Minister through a vote of confidence. I am advancing the argument that the Bill gives Prime Ministers a second chance—more so than under existing arrangements. I am grateful for my noble and learned friend’s willingness to reflect upon what has been said from all parts of the Committee. In the light of that, I beg leave to withdraw the amendment.
Amendment 35 withdrawn.
Amendments 36 to 40 not moved.
Lord Falconer of Thoroton: My Lords, this is another part of the conundrum that we have debated pretty fully already. Perhaps I may indicate the particular problem that this amendment deals with. My inclination on how one deals with a vote of no confidence is that it should generally lead to a general election. My complaint about the Bill is that it is drafted too rigidly, reducing flexibility, and that it encourages a situation where once a vote of no confidence is lost, the norm is not a general election but a process of haggling. I believe that is quite contrary to the purpose described by honourable gentleman the Deputy Prime Minister to the committee chaired by the noble Baroness, Lady Jay. He said that it,
as set out in paragraph 15 of the committee’s report. It obviously does precisely the opposite if what happens when you lose a vote of confidence is that there is then a haggle and a new Government are produced.
I recognise that there are some circumstances where you do not want to have a new Government or an election straightaway. I have already mentioned in particular the general election of January 1924 and Mr Baldwin going to the House with a Queen’s Speech that was then effectively voted down by Parliament. I do not think the public would have wanted a general election at that point. They would have wanted a majority Government to be re-formed.
Amendment 41 says that the 14-day period applies only where a Government have not yet obtained the confidence of the House of Commons. However, I say that in the context of strongly objecting as a matter of principle to the idea that the norm after a vote of no confidence is to try to re-form a Government. That should generally take place only where the Government have not yet obtained the confidence of the House
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Lord Forsyth of Drumlean: My Lords, I wish to speak briefly on this interesting amendment. I go back to the point raised earlier when comparisons were raised with the Scottish Parliament. The Scottish Parliament has been mentioned in defence of the Bill, but it seems to me that the Scottish Parliament is a completely different institution. First, it is elected by PR and therefore its procedures are designed to deal with that situation, but it is not a body which votes means of supply. The House of Commons raises means of supply. An Executive who are no longer able to command the support of the House of Commons are no longer able to operate the Government of the country because they are no longer able to raise the taxes which are required. That is the fundamental constitutional issue here. When a Government no longer have the support of the House of Commons, they are no longer able to carry on and it is necessary to go back to the country to get the authority to vote means of supply. These comparisons with the Welsh Assembly and the Scottish Parliament are totally erroneous for that reason. Therefore, the idea that when the Executive no longer command the support of the House of Commons to levy taxes on the people you should have 14 days to do a deal so that you can restore that authority is deeply erroneous. The noble and learned Lord is right in what he says in proposing this amendment.
Lord Wallace of Tankerness: My Lords, I thank the noble and learned Lord for his explanation of the amendment as I found its purpose somewhat difficult to discern. He has indicated that it seeks to address the situation, perhaps immediately after an election, where no Government have been formed. My difficulty is that, if the amendment were included in the Bill, a situation such as we are discussing might arise later in a Parliament when a Government had been formed. The amendment states:
“An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election”.
That could almost exclude an early general election being called if, the Government having been formed since the last general election, there was a vote of no confidence and no other Government were then formed.
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Lord Falconer of Thoroton: I could leave out entirely the legitimate drafting point that the noble and learned Lord makes. If the amendment said,
would that help the noble and learned Lord to determine what I am trying to say? It is my fault for not putting it well.
Lord Wallace of Tankerness: I was genuinely somewhat puzzled about what the point was. However, I understand that the noble and learned Lord is trying to address a certain situation. I can see the distinction between an incoming Government following an election who have never faced the House of Commons on a Queen’s Speech and one which may have done so and lost as they are a continuing Government. He may wish to consider whether a general election should immediately ensue if an incoming Government who are not a continuing Government lose a vote on their first Queen’s Speech. I give a hypothetical example. If a minority Conservative Government had been formed after May last year, they would have been the new Government. A Government would have been formed but they may not have carried the day on a Queen’s Speech. I rather suspect that the circumstances which the noble and learned Lord sought to address in his amendment might be similar to that example. I suggest that another election would not necessarily be triggered immediately by that scenario.
As I understand it, the noble and learned Lord is saying that there are circumstances where there is the possibility of another Government being established, as, indeed, happened in 1924. He thinks that the presumption would be in favour of an early election, triggered by a vote of no confidence. However, it is a rebuttable presumption. The noble and learned Lord is trying to identify the circumstances in which that presumption might be rebutted. One such circumstance could well be where we have an election, there is no overall majority and therefore there ought to be an opportunity, if the Government lose a vote on the Queen’s Speech, for another one to be formed. I understand what he is saying but the difficulty we have in these situations is with the general assumption that an election would take place. We need to make the position certain and not leave it completely vague and imprecise. It is one of the challenges which we have sought to address in the Bill. It may seem somewhat cumbersome at times with the Speaker’s certificate mechanism but the purpose behind that is to try to ensure that there is certainty and that if situations arise which will lead to an election it is not a question of wondering whether it will or will not take place. We need to establish that certain circumstances would trigger elections while others would not.
I entirely agree with my noble friend Lord Forsyth that there are important distinctions to be made between the Scottish Parliament, the Welsh Assembly and the Westminster Parliament. I think that in an earlier intervention I indicated that you can only take the comparisons so far. If a Government have not
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Lord Forsyth of Drumlean: I am most grateful to my noble and learned friend but my point, which I am delighted that he acknowledges, was that the Scottish Parliament is different because it does not vote means of supply. The argument has been advanced that these provisions are appropriate for the House of Commons. Indeed, it has been thrown back in the face of the Labour Party that it introduced these provisions for the Scottish Parliament. The Scottish Parliament was deliberately designed in the electoral system as an institution in which no party would be able to get an overall majority, and my noble and learned friend played a part in that. Therefore, to import provisions relating to a Chamber which is completely different from the House of Commons and argue that they are appropriate is an error. That is the point I was making.
Lord Wallace of Tankerness: My noble friend is absolutely right. That is why there was an electoral system that almost invariably would not produce a Government with an outright majority. My noble friend Lord Newton said earlier that we may be entering an era where even the first past the post system will not necessarily produce an overall majority, and we can speculate about what might happen if we have an alternative vote system. Nevertheless, the point remains that, if we have a fixed-term Parliament, there has to be a means of breaking out of it if there is a stalemate, and that is what we are seeking to achieve. We have heard a suggestion as to how that might be addressed in circumstances where there was an incoming Government after an election and you would not necessarily want to trigger another election immediately. Again, I think that that is consistent with what I said regarding earlier amendments—it is part of the mix. I do not think that there is too much between us in recognising that a way out has to be found if a Parliament is no longer sustainable, but the challenge is how to do that with the maximum certainty. I
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Lord Falconer of Thoroton: Of course I shall withdraw it because we are in Committee and will not really be having any votes. I completely agree with what the noble Lord, Lord Forsyth, said about the Scottish Parliament and the Welsh Assembly being completely different, and I particularly agree with what he said regarding the supply issue. They are both important but they are different sorts of institutions. I do not agree that the old rules do not work because there is now more of a three, four or five-party system in the Commons. That is completely wrong. I keep going back to 1924, but it was because there were three parties and no one had an overall majority that the Queen’s Speech was defeated in January 1924. In October 1924, when again there were three parties, a vote of no confidence was passed in the then Labour Government and Ramsay MacDonald went straight to the country without any difficulty at all, understanding immediately that that was the appropriate thing to do.
With the greatest respect to the noble and learned Lord, this is not a comment on him but on the process. He struggles when he tries to explain the rationale for these provisions. He says, “We want not to be too vague and we want to bring some certainty but we do not want to be too precise”. Those are not his exact words but that is what he said in his reply. I ask: why is it not okay to say “once there is a vote of no confidence”? The noble and learned Lord should remember that the Bill deprives the Prime Minister of calling a general election unless there is a vote of no confidence or a two-thirds vote, which is a considerable restriction. The Government are trying to deliver the element of fixedness but their mistake is in saying that there has to be some complicated process thereafter. This debate simply reinforces the sense that it would be sufficient to have a general provision saying that, where there is a vote of no confidence in the Government, there may be a Dissolution. It would be viewed as a constitutional provision and would not be picked over in this legalistic way, which is the inevitable consequence of the coalition’s drafting of the Bill. I beg leave to withdraw my amendment.
Amendment 41 withdrawn.
Lord Howarth of Newport: My Lords, after the words in Clause 2(3)—
“A certificate under this section is conclusive for all purposes”—
my Amendment 42 would add the words,
Noble Lords will instantly recognise that that language is taken from Article 9 of the Bill of Rights Act of 1689, and, as such, it may have some reverberance. If these words were incorporated, I suppose that the House of Commons would, in the politest possible
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I have tabled the amendment because the Clerk of the House of Commons, having examined the Bill as drafted—and we should surely take his view very seriously—considers that parliamentary privilege would be jeopardised by it. He wrote a memorandum to the Political and Constitutional Reform Committee of the House of Commons last August and, if I may, I shall quote some sentences from it. He said:
“My concern is with the way in which provisions of the Bill impinge upon Parliamentary privilege and which may bring the Courts and Parliament into conflict … The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates”.
Then he said that the provisions of Clause 2(2),
The Clerk of the House of Commons said that he was not satisfied with the protection that the Bill as drafted provides:
“Although the provision in 2 (3), that the Speaker’s certificate is conclusive for all purposes, is meant to mitigate challenge or questioning in the courts, it cannot be a protection against the courts interpreting statute either in the UK or in Strasbourg ... embodying these internal proceedings in statute radically changes their status since, by reason of being embodied in statute law, they become questions which are ultimately to be determined by the judiciary rather than by members of the legislature”.
He continued by saying that history provides,
He explained that the,
He thought that there could be legal challenges as to what a motion of no confidence was, as to the Speaker’s selection of amendments for debate and as to whether votes had been properly cast. In his oral evidence to the Select Committee, he observed that Erskine May contains five pages on irregularities in Divisions: mistakes in counting; the Division Bell not working; Members being locked out; Members being nodded through; and so forth.
I tabled this amendment and speak to it with some diffidence, not least in the presence of two very distinguished former Speakers of the House of Commons and a former Deputy Speaker. I am also aware that noble Lords learned in constitutional law, distinguished academic witnesses in their evidence to the Constitution Select Committee of your Lordships’ House and the Constitution Committee itself all expressed themselves as being reasonably sure that there will be no significant practical risk that the courts will abandon their centuries-old recognition and acceptance of Parliament’s exclusive cognisance of its internal proceedings. The Constitution Committee concluded:
“The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of
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Tempting though it is to rest on that comforting conclusion, I suggest that this Committee should at least pause and think about what the Clerk has said. No one except Mr Clegg and Mr Harper has said that this risk can be ruled out. Professor Dawn Oliver, giving evidence to the Constitution Committee, said that in her opinion it was,
Professor Anthony Bradley, in the same session, cited Mr Justice Stephen in Bradlaugh v Gossett and Lord Roskill in the GCHQ case as underpinning his belief that the courts would not advance into this territory. However, he anticipated,
and acknowledged that there could be arguments of a broader or different kind, which could not be raised in Bradlaugh v Gossett, that would have to be addressed. He did not contend that a Speaker’s certificate could not be subject in a primary way to the jurisdiction of the courts but considered that in a secondary sense the court would be very loath to apply intensive judicial review to the Speaker’s certificate. He thought that the case could come into court, although he thought it also likely that the judges would decline to rule on it. He noted that aspects of self-regulation have been taken away from the House of Commons, such as, for example, election petitions, expenses and allowances. All in all, his testimony was less than entirely reassuring.
Mr Richard Gordon QC, in written evidence to the Constitution Committee also argued:
“It would … be unwise to assume that there are no circumstances in which the validity of a conclusive evidence clause could be questioned in the courts … At the level of international judicial adjudication … it is highly questionable whether an assertion of parliamentary privilege (by reference to Article 9 of the Bill of Rights Act 1689) would necessarily operate to prevent parliamentary materials from being scrutinised”.
He concluded by saying that,
but he thought that it ought to be taken into account.
David Howarth, reader in law at Cambridge, former Liberal Democrat Member of Parliament and proposer of the Fixed Term Parliaments Bill 2007—a believer in fixed-term Parliaments—said in evidence:
“The statutory escape mechanisms create a risk that the courts will intervene”.
He elaborated by saying:
“The Bill tries to prevent legal challenge by making the Speaker’s certificate ‘conclusive for all purposes’. But a court that wanted to side-step that provision could easily do so by use of the Anisminic manoeuvre, that is by saying that legal error by the Speaker has resulted in a situation in which the Speaker had not issued a ‘certificate’ under the Act”.
Again, he also said,
“The risk is admittedly small”.
I am not a lawyer, but it seems to me that the constitution is not static. It evolves to meet new circumstances. Among the relevant new circumstances are the growing boldness of citizens to sue for their rights and the growing boldness of judges, in judicial review and in interpreting human rights, to venture into political roles where they would have stood back in the past.
Here it is interesting to note some remarks of the noble and learned Lords, Lord Steyn and Lord Hope, in Jackson v HM Attorney-General 2005. I understand that that case concerned the legality of the Hunting Act and whether the Parliament Acts impose judicially enforceable constraints on how Parliament may legislate. The basic argument was whether the notion that Parliament can make or unmake any law requires the presence of enforceable rules for defining what a law is, in which case the court could presumably disallow something that purported to be a money Act but which had not passed through a proper certification procedure—a thought relevant to a Bill that introduces a certification procedure avowedly based on that—or whether, on the other hand, an assertion by Parliament that something is a piece of legislation is decisive in the matter.
I shall briefly quote remarks from the two learned judges. The noble and learned Lord, Lord Steyn, said:
“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.
The noble and learned Lord, Lord Hope of Craighead, said:
“But Parliamentary sovereignty is no longer, if it ever was, absolute ... Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”
The noble and learned Lord, Lord Bingham, did not see eye to eye with his learned friends on these issues.
However, this is not a static scene and my fear is that appeals to traditional constitutionalism may over time fall on deaf judicial ears. The more we write new constitutional legislation and the more we encode the constitution, the more the judges will feel impelled to interpret. The more things are statutory, the less binding will be the conventions. The committee of your Lordships’ House that reported on the conventions governing the relations between the House of Commons and House of Lords—we all assented to its conclusions—was of the view that, as and when we have a statutorily created elected second Chamber, the traditional conventions will not apply as previously. It is something of a choice between laws and conventions.
Mr Harper, the Minister, was remarkably assured in the note that he deposited in the House of Commons Library in September. He said that,
He thought that the Clerk’s memorandum,
The suggestion that the Bill could bring parliamentary matters before the European Court of Justice and the European Court on Human Rights was, Mr Harper said, “wholly without foundation”. He continued in somewhat contemptuous terms that the Clerk,
In his oral evidence to the Constitution Committee, Mr Harper was equally bullish. He said that the Speaker’s certificate was,
He spoke of a certificate as a “mechanism”—his metaphor conveying a simple faith in the automaticity of its effect.
Dr Jack, the Clerk of the House of Commons, having considered all this evidence put to both Select Committees, provided further written evidence, which is given on pages 12 and 13 of the evidence section of the Select Committee report. He did not retreat. He continued to consider that,
He noted that the circumstances of Bradlaugh v Gossett in 1884 were different from the circumstances of today, for example, in respect of human rights. He was sceptical about the self-restraint of the courts and noted,
The Clerk of the House of Commons also noted,
In one such case, two judges had expressed reservations about the lack of remedies against the exercise of parliamentary privilege in the United Kingdom system. Dr Jack suggested that Parliament might be wise at least to wait for the promised draft Parliamentary Privileges Bill.
Professor Bradley equally did not recant after he had read Dr Jack’s supplementary evidence. Whom should we believe? Should we believe the Minister or sundry distinguished academics? Should we rely on the assurance given by your Lordships’ Select Committee? I know that your Lordships will attach great weight to its conclusions. Or should we pay very considerable regard to what the Clerk said in his carefully considered and repeated warning?
This issue is massively important for Parliament and it matters very much that we get it right. I beg to move.
Baroness Boothroyd: My Lords, I regret that I was unable to be here for the Second Reading of the Bill but I say at the outset that I endorse the criticisms of it in many of the speeches made in that remarkable debate, which showed this House at its very best.
I wish to focus my remarks on the change to the role of the Speaker of the Commons under the Government’s provisions, which has not been touched on in any great detail until the amendment that has just been moved this evening. As the provisions stand, they extend the Speaker’s authority in a way that affects much more than his position as a presiding officer. They give him the statutory power to trigger a general election in critical situations, the intensity of which the Government too lightly glosses over. It is left to the Speaker to decide what constitutes a motion of no confidence in the Government.
The legislation brushes aside the reasoned warnings by the Clerk of the Commons of the possible legal dangers of the sweeping changes that are being proposed. As it stands at the moment, it will not do. We all know that it is our duty to make this legislation fit for purpose if it is to command confidence and withstand the test of time. We all know that Parliament has suffered too many self-inflicted wounds to its reputation in recent years to accept a half-baked Bill to enable the coalition to remain in power until May 2015. Parliament is still in the convalescent stage after the trauma of the expenses scandal. We cannot afford a botched attempt to change the way that Governments can be forced from office when they lose the confidence of the House of Commons.
The evidence of the Minister for Political and Constitutional Reform to your Lordships’ Select Committee on the Constitution is an example of the Government’s wishful thinking on how the Speaker is supposed to fulfil his responsibilities in this brave new world of fixed-term Parliaments. The noble Lord, Lord Norton of Louth, to whose expertise I pay tribute, put it to the Minister, Mr Mark Harper, that the Speaker would be in some difficulty if he had to decide what was, and what was not, a vote of no confidence on the basis of his own interpretation. The Minister replied that the Speaker should make his position clear before the debate and before the vote. He said that,
He went on:
I must disabuse the Minister, Mr Harper. The Speaker’s role as the sole adjudicator of whether the Government are in danger of losing their life would quickly become a very serious political problem for him and Parliament. Whatever he decided on his own responsibility would lead to ceaseless points of order and unruly outrage in the Chamber. When contentious issues were debated, he would come under intense pressure from all sides—as I know from personal experience. The Speaker’s authority would be as much at stake as the Government’s. In such a situation, a Speaker who lost control would
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I dealt with sporadic outbreaks of unruly behaviour and know the heat that they can generate when Government, Opposition and individuals blame each other. The noble Lord, Lord Howarth, commented that this could happen in the Commons. Misconduct in the Division Lobbies reached such a pitch in the 1992-93 Session that Ministers complained of a constitutional outrage. Without amendments, disturbances likely to arise from thrusting the Speaker into the political cockpit in the way that is proposed in the legislation would undoubtedly be at the top of the Richter scale and would not move far from the courts.
The Commons Speaker has very few formal powers other than those embedded in convention, enshrined in standing orders or specified by legislation relating to the certification of money Bills and the operation of the Parliament Act. No Speaker with the best interests of Parliament at heart would accept any extension of his authority likely to jeopardise his independence and impair his responsibilities to defend the rights and reputation of Parliament against all comers. The great Speaker Lenthall—whose portrait is out there—immortalised the golden rule against which Clause 2 should be judged:
“I have neither eye to see, nor tongue to speak here, but as the House is pleased to direct me”.
Speaking on Second Reading, the noble and learned Lord, Lord Wallace, said,
We all say hear, hear to that. His acceptance of the importance of the scrutiny that we are applying to this Bill in its remaining stages is welcome. However, the noble and learned Lord doubted the need for a specific definition of a no-confidence motion on the grounds that,
Fortunately, we do not inhabit a zoo—although many of our critics may think otherwise. Accepting the elephantine analogy, the Speaker, if these amendments were not accepted, would have to decide whether a motion of confidence or no confidence is akin to a charging elephant that can scatter a Government or a placid animal—the sort that carries children on its back. In either case, I do not believe that it is a fit and proper question for the Speaker. Other amendments will come later this evening that underline and give this area much more strength.
To be frank, I am very sceptical about the need for legislation at all, but we must make sense of what we can and send this package back to the Commons in better shape. The Government’s response so far has been to insist on the authority of the Speaker’s certificate to validate a vote of no confidence and empower a new Government or trigger an immediate general election. Clearly, the Speaker’s certificate is seen as the trump card against any challenge or interference by the courts. The Minister, Mr Mark Harper, wrote a
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“The Government sees no reason why the courts would not continue to defer to”,
the normal rules and principles that protect internal parliamentary proceedings from the scrutiny of the courts. I beg to differ. The Minister referred to the Speaker’s certificate as a further defensive weapon against interference by the courts. His note quotes from Article 9 of the Bill of Rights and added:
“This position is reinforced by the role which the Bill gives to the Speaker in certifying whether certain events have occurred. In other words, these are matters to be decided by the presiding officer of the House of Commons and not the courts”.
I know feelings run extremely high in Parliament when contentious issues are debated. Normally rational people do uncharacteristic things. Imagine what would happen if some judges seized on accusations of obstruction in the Division Lobbies and other improper behaviour that could be said to have prevented a fair and orderly vote on an issue of no confidence in a Government. This was mentioned earlier by the mover of this amendment, the noble Lord, Lord Howarth. It seems that the judiciary is stronger and Parliament somewhat weaker than it was when I entered the Commons 37 years ago.
Contrary to the Government’s claim, the European court is not indifferent to the way Britain runs its constitutional affairs. As Speaker in 1999, I ruled that Sinn Fein could not take their seats without taking the oath of allegiance. Sinn Fein claimed that I had infringed their rights under the European Convention on Human Rights and took my ruling to the European Court. Sinn Fein lost the case, but its appeal was not dismissed out of hand as being none of the court’s business, which the Government would have us believe is the automatic response. The court’s seven judges published a lengthy judgment that stated that the protection of effective democracy,
The court’s judgment in my favour aroused little interest. I have been in public life long enough to know that a British win is a non-story; the British media will not report it. However, this demonstrated beyond any doubt the court’s willingness to examine the case. This is the most important point I need to make. The Minister, Mr Harper, would have us believe that this could not happen, but he is wrong.
I have two observations to make. If, according to the Minister, the inviolability of Commons proceedings is already assured by the Bill of Rights, why does it need the further protection that he thinks is advisable? As I have argued, if the Speaker cannot be exposed to the invidious position that the Minister, Mr Harper, wishes to put him in, where does that leave Clause 2? I believe that we have no option but to scrap it and to accept amendments that are precise and do not leave us open to court proceedings.
Dr Jack’s doubts about the Government’s belief that parliamentary proceedings are entirely off-limits to the courts reinforces my suspicions. He underlined
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but it might. We are on notice by the Clerk of the Commons, whose advice on this subject I tend to rate more highly than that of the Minister, Mr Harper, that if a constitutional matter were ever to reach the courts,
That is a situation in which I do not wish to find Parliament.
Lord Martin of Springburn: I have heard the Minister say on earlier amendments that if they were withdrawn, he would take them back and give serious consideration to the views that had been expressed. The amendments tabled by the noble Lord, Lord Howarth, are similar. Perhaps they can be taken back and considered seriously, considering what my noble friend Lady Boothroyd said and what I am about to say. I hope I can give some advice to this House.
This is not about Dr Jack the individual; it is about the Clerk of the House of Commons. I have experience of previous Clerks: Sir William McKay and Sir Roger Sands. They are all people of the highest calibre. I can give the House an insight into what would happen before the Clerk of the House delivered this advice. He would not just pluck these words out and put them on paper for anyone to consider; he would take soundings from constitutional experts, get someone to be devil’s advocate and put the contrary point of view, and Speaker’s Counsel would listen to the arguments. These people would give their point of view. Therefore, the words of Dr Jack would be the collective point of view of the constitutional experts we have in the House of Commons. The amendment is the property of this House, but I think it would be good idea for the Minister to take back what has been said tonight.
There is a tendency for courts to—I do not think the right word is interfere—look at matters which they would not have looked at 30 or 40 years ago. I am glad that the Court of Human Rights is there, but many Members who were disciplined in the other place said that they would like to take their case to the Court of Human Rights. Some officers of the House, while they did not encourage them or give any view, privately said that if their case went to the Court of Human Rights, with people’s civil liberties as they are at the moment, they might have won it because of the way in which our standards commissioner conducts his affairs without representation, with hearsay evidence and with people making accusations without substantiation. Although this has not been tested, some of the disciplinary measures that were taken in the other place could well have been taken to the Court of Human Rights, and who knows what would have happened?
Pressure is put on Speakers behind the scenes. I worry about the certificate. I recall a situation—forgive me, there might be some military Members in the Chamber—in which a battalion of Royal Marines was to be moved to Afghanistan in the early days of the Afghanistan problem. The Opposition tabled a Motion to put aside the business of the day to allow that matter to be debated. I felt that the Opposition had a case, and I allowed the Motion to be debated, as was the Speaker’s right. Behind the scenes, a government Whip came in—it was always a Whip who came in with the nasty news—and said, “You had no right to do that. You shouldn’t have done that”. This is the pressure that is put on Speakers. I said, “Excuse me a minute. Why shouldn’t I have done that?”. “Because those Marines weren’t going into combat”. The point I made was that if you are moving 500 highly trained members of an elite organisation into an area where they would come to no harm, they should not have been put there. They should have been back on leave in Catterick, Plymouth or wherever they were based. This was the type of abuse—complaining, if I can put it that way—that you got behind the scenes after the event. Before the event was even worse. So what is it going to be like when there is a vote of no confidence and it is down to the Speaker to decide whether a Government have to go to the country? There will be pressure from every side.
We talked about things changing with regard to the courts. Things have changed with regard to the pressure on Speakers. We have spoken about Ted Heath, his Government and how he had to go to the country. I had the honour of having Ted Heath come up as a friend to Speaker’s House to have a private chat with my wife Mary and me. I remember him telling me stories of when he was a Chief Whip. In passing, I asked him how often he came to see the Speaker, because at that time I had to see the government Chief Whip, the opposition Chief Whip and the Liberal Chief Whip on a weekly basis. He said, “I never bothered the Speaker. The Speaker was too busy to bother with the Chief Whip”. Since that time, things have changed, and terrible pressure is put on the Speaker, so I say with the best possible intentions that this is one of those amendments that get an airing in Committee and then the Minister takes the matter back and looks at it.
The Earl of Onslow: I was never Speaker but I am descended from three Speakers. I have never heard of a more awful choice having to be made. If the courts are allowed to interfere, that will have a catastrophic effect on the role of the Speaker. If they are not allowed to interfere, it will have a catastrophic role on the role of the Speaker. I cannot think of anything worse than that. I do not know whether to vote enthusiastically for the amendment or to vote enthusiastically against it. Whatever we do on this amendment will be nothing short of catastrophic.
Lord Williamson of Horton: My Lords, we have heard outstanding speeches from two former Speakers of the House of Commons. I must say that I am a little timid about getting up to say a word when I am the only non-former-Speaker on these two Benches. The speeches from my noble friends Lady Boothroyd and
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Let us imagine ourselves in the circumstances that would be covered by this part of the Bill: that is, that the Government have lost a vote of confidence, the 14 days have gone by and this certificate is called for. Let us also imagine the position of the British public in a situation in which they read in the papers, “Government defeated”, then, “14-day period expires: it’s an election”, and the next day, “Judicial challenge: no election”. This is a critical point from the point of view of operating confidence in the system. Therefore, the amendment in the name of the noble Lord, Lord Howarth, is good, and if it cannot be done in that way we need to strengthen the way of avoiding in this Bill any form of judicial intervention in the system.
Lord Forsyth of Drumlean: My Lords, the speeches that we have heard from the former Speakers speak very eloquently for themselves. I congratulate the noble Lord, Lord Howarth, on his amendment. I do not know whether it deals with the issue but two points strike me. Like the noble Baroness, Lady Boothroyd, I could not be here at Second Reading. One thing that concerns me enormously is that the advice of the Clerk of the House can be brushed aside in what, quite frankly, is an almost arrogant way.
Our institutions are very important, although things might have changed. I never really had a reputation in the other place as someone who was easily cowed or very respectful but I respected the Clerk of the House, the institution of the House and the Speaker’s office. For a variety of reasons, the House and the Speaker’s office have come under considerable attack, which is a great source of anxiety. In responding to this amendment, I hope that my noble friend will give us some assurance that he will look at this again because these are very serious considerations. Ministers might believe that the risk is limited but I am with the Clerk of the House and I would not take any risks with this institution. It is a very precious baby and it seems to me quite extraordinary that we have reached this pass.
The noble Lord, Lord Martin, referred to his conversations with Ted Heath about when Ted Heath was Chief Whip. In 1983, when I went to the House of Commons, my Whip was my noble friend Lord Lang. He said to me, “I am your Whip”. I said, “What does the Whip do?”. He said, “I will give you advice from time to time as to how I would like you to vote. If for any reason you feel unable to take that advice, I would be very obliged if you could just tell me in advance”. It was very polite and respectful. There is a tendency now for executives—I think the previous Government set a particular standard in this—to push through legislation without giving due consideration to perhaps well considered institutional advice.
I do not know whether this amendment will work in the way that the noble Lord, Lord Howarth, suggests, but I certainly think that this issue should be addressed. I can think of nothing worse, as the noble Lord, Lord Williamson, has said, than the courts becoming involved in whether we should have a general election. That
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Lord Cormack: My Lords, I very much agree with what has been said so far. We will have an opportunity later to debate this clause in its entirety, and I believe that it should be replaced by something that is much more carefully and thoughtfully drawn up. To bring the Speaker into this position would be a cardinal political sin, in my view. We have heard from two former Speakers, who were clear in their advice to this House. In doing so, they were able to speak from the experience of working with the Clerk of the House that none of us can rival, and nor can any Minister in the Government.
While the Minister in charge of this Bill in another place is an extremely able and industrious young Minister, who I am sure has a glittering future ahead of him, he is not the world’s greatest constitutional expert. This Bill is deficient in many respects. It has many aspects, some of which I will touch on later, that should give any constitutional expert real cause for alarm. However, if there is one thing above anything else that is devastating in its implications, it is the politicisation of the role of Speaker. The noble Lord, Lord Howarth, has done the House a signal service in drawing specific attention to this. The House has been singularly fortunate too to be able to hear from the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, who were able to speak from very real experience. I beg the House—although of course we will not vote on this tonight—to stand firm. I very much hope that the Minister’s response will indicate that we will not need to proceed into the Content and Not Content Lobbies on this one, but if we do we should send a real signal to the other place that this is something up with which we will not put.
Lord Marks of Henley-on-Thames: My Lords, I rise with some diffidence in view of the speeches from the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin, and others that we have heard. First, I think we all believe that the notion that the courts should be able to interfere with the Speaker’s certificate when this Bill is enacted, if it is enacted in its present form or in something similar to it, is one that we would abhor. No one is suggesting that that is a desirable or acceptable outcome in any way.
In moving his amendment, the noble Lord, Lord Howarth, discussed the evidence before the Constitution Committee in some detail. I do not propose to rehearse that evidence. However, I would point out that Professor Bradley, an old friend with whom I would be hesitant to disagree, expressed the conclusion that the judiciary would surely accept that this was an area for political judgment which the courts were not qualified to make. That was the conclusion of your Lordships’ Constitution Committee.
This is not simply a matter of the evidence of Mr Harper, which has been dismissed in quite strong terms by others who have spoken. In the light of the careful note of the Clerk of the House of Commons, the Constitution Committee spent a great deal of time analysing all the evidence on this point. The conclusion to which it came was that the risk of judicial interference was very small. It went further in concluding that it was so small that it was not sufficient to warrant the rejection of Clause 2. The assessment of what risk might or might not be acceptable is a difficult area. I align myself with the view expressed by the majority of the legal evidence to the effect that the chances of interference by the courts would be so small as to be insignificant.
That is not to say that we can ever stop anyone bringing a misguided application. However, as Professor Bradley also pointed out, misguided applications can be dealt with quickly and given short shrift. That is what I believe and would expect to happen. The result is that in theory an initial challenge could be brought to the Speaker’s certificate. However, it is the judgment of the Constitution Committee, which I invite your Lordships’ House to accept as well founded, that that challenge would not lead anywhere—a judgment that was made in the face of, and on consideration of, the evidence of the Clerk of the House of Commons, to which a great deal of respect was given.
Lord Forsyth of Drumlean: My noble friend is obviously an expert in these matters. As the argument is about the degree of risk, can he explain why it is necessary to take the risk at all?
Lord Marks of Henley-on-Thames: My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability.
The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that,
That is a general statement of the principle of parliamentary privilege.
The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words “conclusive for all purposes” and,
The phrase is “shall not”, not “ought not”. I suggest that, for a modern approach to the construction of statutes, the phrase “shall not” is much more useful than “ought not”. The House of Lords Act 1999 simply uses the provision that the certificate shall be “conclusive”. In this Bill we have the words, “conclusive for all purposes”.
Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of “ought not”, those phrases “shall be” and “shall not be”—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.
Lord Falconer of Thoroton: My Lords, this has been a powerful short debate. My noble friend Lord Howarth introduced the debate moderately and marshalled the material effectively. The speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, would make any Government stop in their tracks in relation to certification and the Speaker.
It is important to identify that two separate points are being made. First, no one engaged in the discussion of the Bill wants the courts to have anything whatever to do with challenging what goes on in Parliament. I speak only from the point of view of the courts, not from the point of the view of the Commons. For all the reasons given by the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, the courts would run a mile from giving any determination in relation to this. They would do so for legal reasons: first, this is a proceeding in Parliament and therefore protected by the Bill of Rights; secondly, it specifically involves a certificate given by the Speaker of the House of Commons as to a proceeding in the House of Commons; and, thirdly, the Bill states:
“A certificate under this section is conclusive for all purposes”.
As a matter of legal drafting, it is clear that the draftsman is trying to keep out the courts as much as possible.
Equally, for all the reasons given by the two impressive ex-Speakers, the courts do not want to be in a position where they have to say, “We know you all think there is about to be an election, but Mr Justice X has just said that there is not going to be an election”. Can you imagine the situation if a Speaker of the House of Commons had said, “I know you all think that a vote on whether or not we should go to war in Iraq is a vote
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I was struck by the evidence of Mr Harper in comparison with what the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, have said. They have given graphically their opinion of what it would be like to make these decisions. However, the chairman of the Select Committee asked Mr Harper:
“But it would presumably put pressure on the Speaker if, let us say, he did not make an announcement in advance”.
Mr Harper replied:
“I think the Speaker would want to make sure that the House was clear about the nature of the debate and the vote attached to it. I am not sure that it would put pressure on him; I think there would be an expectation that he would set out clearly the nature of the debate and vote that was to take place, the consequences of the vote and what he would do as a result, so that people were clear about it. I think there would be an expectation that that is what would happen … I don’t think it’s asking the Speaker to make decisions beyond those he should make if there is an expectation. If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention. He is not really creating any new rules. He is just making it more explicit about the effect of existing conventions that are already in place” .
That was Mr Mark Harper, the Minister of State—
Lord Bach: Parliamentary Secretary.
Lord Falconer of Thoroton: I make it clear that my error is in no way intended to undermine him. He is the Parliamentary Secretary responsible for political and constitutional reform. It is his view that the Government appear to take in relation to these issues. It is a matter for this House as to whether it is guided more by the views of the two ex-Speakers or by the evidence of Mr Mark Harper. Speaking entirely for myself and having heard the two ex-Speakers, I found the evidence of Mr Harper wholly unconvincing. It suggests to me that not enough thought has been given to this provision.
Lord Martin of Springburn: Mr Harper perhaps overlooks the fact that any Speaker always has at his or her side the Clerk of the House and takes their advice. I grant that it is advice and that, at the end of the day, it is the Speaker who has to make the decision. However, the Clerk of the House is always there. Here we have a situation where the Clerk of the House has taken the very serious step of giving written evidence that he is deeply concerned about this matter.
Lord Falconer of Thoroton: I completely understand what the noble Lord, Lord Martin of Springburn, is saying. My own view is that the courts would try to avoid getting involved, but the consequence of their not doing so is that the Speaker of the House of
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The more we debate it, the more the best solution feels like a provision that simply says that where there is a vote of no confidence there may be a general election. I do not think that my noble friend Lord Howarth would say that his amendment gives 100 per cent protection from the court; it certainly does not give the Speaker any protection from getting involved in the fray, which is so significant to their independence. I anticipate that my noble friend will say that he has put down the amendment simply in order to test the proposition. I would urge the noble and learned Lord to go back to the drawing board and see how he can construct a provision that is intended not to be a tick-box provision but instead to be a much broader constitutional provision. That will make it clear that the courts are not to be involved. Equally, it will not draw the Speaker into a political fray that could be fatal to their standing either in the House of Commons or, more damagingly, with the public at large. This is another indication that the Bill requires a lot more thought.
The Earl of Onslow: Has not the noble and learned Lord, Lord Falconer, actually made a speech suggesting that we should use some of the remaining powers left to us under the Parliament Act to sling this rotten Bill right out hook, line and sinker?
Lord Falconer of Thoroton: Do not tempt us.
The Earl of Onslow: I may be tempted to tempt.
Lord Falconer of Thoroton: The noble Earl is right to identify that the Bill is not covered by the Parliament Act. The more we debate it, the more it seems an appalling mess. If major surgery is not applied to it, a point may be reached where the House might think, very unusually, that it messed up the constitution to such an extent that it should contemplate not giving it a Third Reading. I am sure that a Minister such as the noble and learned Lord, Lord Wallace of Tankerness, will persuade the Government to apply major surgery to the Bill.
Lord Wallace of Tankerness: I thank the noble Lord, Lord Howarth, for the amendment, which I think, by any account, has produced a very informed, worthwhile and important debate. At Second Reading, my noble friend Lord Cormack expressed the hope that we would be able to look at privilege in Committee. Our minds have been very much focused by the amendment of the noble Lord, Lord Howarth, and he has done a service to the Committee by tabling it. I thank noble Lords who have taken part in the debate, not least the two former distinguished Speakers of the other place, the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, who bring to this debate many years of experience not only as Speakers but also as Deputy Speakers. They have between them many years of occupancy of the Chair, and any Government would be wise to have regard to what they have said. As I said in our earlier debate, this is a part of the Bill where I think that there is some common ground on what we are trying to achieve; that is, to ensure that we do not have fixed-term Parliaments that are absolutely fixed and, if there is to be some means of breaking out of a deadlock, to try to identify how best that is to be done. The comments that the former Speakers made, specifically with regard to the Speaker’s certificate, form part of the consideration that we want to give in trying to get it right.
A number of distinctive points arose out of the amendment and the debate. Perhaps I may be able to separate them out. The noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, spoke about the Speaker being brought into political controversy and how that related to how motions of confidence were defined. There will be further opportunity to discuss that later in Committee when we come to the amendment of my noble friend Lord Cormack. The comments that have been made will relate to that as well.
The substance of the amendment of the noble Lord, Lord Howarth, related to parliamentary privilege and the fact that, as my noble friend Lord Marks indicated and was confirmed by other speakers, all of us would be in agreement in abhorring a position where the courts should be able to interfere with the certificate if that is what emerges from the Bill. The noble Lord, Lord Howarth, sought to add the words which, as he rightly said, ring down through many centuries and which come from Article 9 of the Bill of Rights. That states that,
I think that it is widely agreed that that article is of great constitutional importance and a significant plank of what we describe as a doctrine of parliamentary privilege. One of the most important aspects of privilege is that it is for Parliament to judge the lawfulness of its own proceedings, not a court or other outside body. The noble Lord, Lord Howarth, said that he wanted to reinforce that principle by inserting those words. I again confirm that the Government do not consider it appropriate for the courts or other outside bodies to scrutinise how the Speaker would exercise his or her functions under the Bill.
With specific regard to the words of the amendment, I echo some of the comments made by my noble friend Lord Marks. We do not believe it necessary to
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The noble Baroness, Lady Boothroyd, asked what purpose was then served by having a conclusive certificate, when we claim that the matter is already one of privilege. Again, I confirm that it is true that the subject matter of a certificate relating so closely to proceedings in Parliament would mean that privilege alone would be sufficient to prevent the courts considering it. However, making a certificate conclusive reinforces that point and is intended to enhance that certainty.
I cannot accept the assertion made by my noble friend Lord Forsyth that the Government just brushed aside the position set out by the Clerk of the Parliaments. Clearly, when the Clerk of the Parliaments makes a submission such as that, it is given considerable care and attention. My noble friend Lord Marks pointed out that the Constitution Committee of your Lordships' House received considerable evidence on that from a number of people who have great standing as academics in constitutional law. Indeed, it referred in its report to,
Lord Forsyth of Drumlean: I accept my noble and learned friend's rebuke. I come from a tradition which thinks that the Clerk of the House is normally the person best qualified to advise on these matters. The way that the Minister dealt with that did not show the kind of respect that ought to be given. I hear what he says. Perhaps I am a bit daft and am missing something here, but could he explain why it is necessary to have the certification process at all?
Lord Wallace of Tankerness: It is necessary because, as the Bill is constructed, there are trigger mechanisms to cause an election. There has to be certainty as to what causes that election so that it has legitimacy. One of them is to certify that two-thirds voted to trigger a Dissolution. In the context of votes of no confidence, if we seek to take power away from the Executive and the Prime Minister to determine what would be a vote of no confidence, it would be self-defeating then to say that the Prime Minister himself or herself could determine what is a vote of no confidence. Therefore, we give it to the person who is recognised as being independent to certify that there has been a vote of no confidence in the Government and that 14 days have elapsed. That is factual: that there has been a vote of no
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There is a distinction between a certificate that certifies a fact—hopefully, that could not bring the Speaker into any kind of controversy—and the Speaker being asked to certify or indicate what he or she would consider to be a vote of no confidence. That brings us into the territory of earlier amendments, and those to be spoken to later by the noble Lord, Lord Cormack.
Lord Forsyth of Drumlean: Perhaps I am being stupid, but if a motion in the House of Commons states, “This House has no confidence in Her Majesty's Government”, and it is passed, why do we need a certificate to say that it has been passed? The 14-day provision is open for debate, but if the Bill says that Dissolution should happen 14 days after a motion has been passed, surely it is just a matter of counting the votes. Am I missing something?
Lord Wallace of Tankerness: I say again, it is not just that it is passed, it is that it is passed and that there has been no further vote of confidence in any Government. That is done for the purpose of ensuring legal certainty: that the election has legitimacy. It is quite straightforward why that is being done: that there is certainty. Otherwise, there will be a fixed-term Parliament where the law will say that the next election should be on whatever date and that to have an election not on that date, you have to be certain that the criteria laid down by law have been met. We take the view that a certificate from the Speaker makes certain beyond challenge that the criteria for having an election not on the date which would otherwise be the case have been met.
The Earl of Onslow: Can the noble and learned Lord give me any precedent where a specific motion of no confidence in the Government has been passed, followed two, three or four days by another motion saying, “Actually, we made a boo-boo and we do have confidence in the Government”? I cannot think of one in the 19th century, or, probably, in the 18th century; and certainly not in this century. Or am I being stupid, like my noble friend Lord Forsyth?
Lord Wallace of Tankerness: I would never say that my noble friend is being stupid; I take the blame myself for perhaps not explaining this clearly. It may not necessarily be the same Government. More often than not, it will be as happened in 1924, when there was a motion of no confidence, or the Government of the day lost on the Queen's speech, and a new Government came in that carried the confidence of the House. That was a circumstance where a new Government was in place with the confidence of the House. Therefore, there are circumstances in which it could happen.
Lord Tyler: We should look at the precedent for such certification, which is surely the Parliament Acts. Equally, that is a factual situation, but certification is to put it beyond the shadow of doubt that a certain process has taken place within a particular timeframe. That will then be, one would hope, conclusive. Presumably that is the purpose of the provision.
Lord Wallace of Tankerness: It is for the purpose of making it legally certain that the circumstances have been met, that the conditions have been fulfilled, under which an early election could be called and that the next election should not be on the date on which it would otherwise be under the Bill. That is the purpose. If it is of a factual nature, that should not cause any problem or place pressure on the Speaker. I acknowledge that where the Speaker has to decide whether a matter is a vote of no confidence or not, other factors come into play, and we have certainly listened to what has been said.
Lord Martin of Springburn: I thank the Minister for being patient with me. The noble Lord, Lord Marks, was kind enough to say that proceedings shall not be challenged. It is important that the Minister goes away to consider this and perhaps consults the noble Baroness, Lady Boothroyd, and myself on our experience. I am talking from memory, but the signing of a certificate is not necessarily regarded by the courts as a proceeding of Parliament. Decisions are proceedings of Parliament, but the signing of a certificate by the Speaker is different and is not necessarily regarded as a proceeding of Parliament. I throw that one in, and it is important that the Minister goes away to think about this.
Lord Wallace of Tankerness: My Lords, I accept the offer of the noble Lord—and perhaps of the noble Baroness—to discuss this. I am more than willing to do so. However, as my noble friend Lord Tyler mentioned, certificates in relation to finance matters under the Parliament Act have never in 100 years been subject to challenge. The noble Lord, Lord Martin, says that they are different; they are certifications; they are certificates that are issued.
Regarding the other points made by the noble Lord, Lord Howarth, that were alluded to by the noble Baroness, Lady Boothroyd, in the Anisminic case in the 1960s the courts were able to review determinations of the Foreign Compensation Commission, even though those determinations were, by statute, not to be called into question in any court of law. However, in those cases, the starting point was that, but for the ouster clause in the statute, the courts would have had jurisdiction. The courts were thus looking for clear words to exclude an otherwise existing jurisdiction.
The facts of this circumstance are different, because the courts do not have jurisdiction over internal parliamentary proceedings. The fact that the subject matter of the certificate relates to internal parliamentary proceedings that are off limits to the courts means that there will be no motivation for courts to interpret the provisions that provide that Speaker’s certificates are conclusive narrowly.
In the other case which the noble Lord mentioned, regarding Jackson v Attorney-General, two issues have perhaps been conflated. Perhaps that is where confusion has arisen. The issues were, first, whether courts can inquire into the validity of Acts of Parliament; and, secondly, whether courts can inquire into internal parliamentary proceedings. On that second issue, the House of Lords, in its judicial capacity, asserted a view that is complete orthodoxy: that the Commons Speaker had certified that the internal proceedings of
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The noble Baroness, Lady Boothroyd, referred to the European position and mentioned the case involving Sinn Fein and Martin McGuinness. Interestingly, in the Northern Ireland High Court, it was held that the matter was not justiciable on the grounds that it fell within the exclusive cognisance of the House. It is accepted that Article 9 of the Bill of Rights does not apply to the European Court of Justice or the European Court of Human Rights. However, a case will be brought before such courts only where EU law or convention rights are engaged, respectively. The subject matter of the Bill is not in any way related to EU law. Likewise, the functions of the Commons Speaker under the Bill do not engage any convention rights. In support of this point, the Joint Committee on Human Rights has reported that the Bill did not need to be brought to the attention of either House on human rights grounds.
I should add that in the case of A v United Kingdom in 2003, the European Court of Human Rights held that Article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. While noble Lords have raised a legitimate point, it leads to the view that the noble and learned Lord, Lord Falconer, has expressed today and at Second Reading, that a Speaker’s certificate would not be challengeable in the courts. I agree with that analysis and it is no disrespect to the Clerk of the House to state that, although he advanced a different argument. The weight of evidence given to your Lordships’ Constitution Committee was such that it, too, thought that the weight of evidence was that it was highly unlikely that the certificates would be justiciable.
Important distinctions are to be made between that issue and the other concerns that have been expressed about bringing the Speaker into some political role. We have an opportunity to debate these matters further, but, in the light of my comments, I hope that the noble Lord, Lord Howarth, who I once again thank for introducing this important debate, will withdraw his amendment.
Lord Howarth of Newport: My Lords, this has been an outstandingly important debate about an outstandingly important subject. I hope that Ministers will study it and think very carefully about the advice that noble Lords have offered. In particular, Ministers should study the speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn—two former Speakers of the House who have a wisdom to offer that the Government should certainly heed with the greatest care.
Mr Harper, the Minister, may care to reflect upon exactly why the noble Baroness, Lady Boothroyd, said in round terms that he is wrong. She made a very important speech and, as my noble and learned friend Lord Falconer said, it ought to make any Government
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The noble Lord, Lord Martin, floated the possibility that the act of certification by the Speaker may not in itself be a proceeding in Parliament. That perhaps could lead to it being all the more questionable in the courts, but, at all events, certification would relate to other events that have been proceedings in Parliament. We are still fairly deeply entangled.
The noble Baroness spoke about the problems of definition of a no-confidence motion and the scope for legal contention that could arise out of that. Both she and the noble Lord, Lord Martin, advised the House about how contentious the atmosphere would be in the House of Commons—the anger, the passion and the fury that would be raging around the rather solitary person, the Speaker, as he or she issued a certificate. The Speaker would of course be supported by the Clerk of the House, but, in the end, the Speaker would have to take this responsibility of adjudicating on the most intensely political issues that it is possible to imagine. Is it really wise to place the Speaker of the House of Commons in such a situation?
We need to pause and reflect, not least in the context of what both former Speakers described to us as the growing power and challenge of the judiciary to Parliament, and its growing willingness to engage in political issues in certain ways. That echoes the phrase used by the Clerk of the House, when he referred to a Supreme Court that has “not yet got its teeth into these matters”. If our Supreme Court has been relatively restrained, the European Court of Human Rights has not. As long ago as the case that occurred during the Speakership of the noble Baroness, Lady Boothroyd, when the European Court of Human Rights entertained the Sinn Fein case, it was already willing to venture into this territory. The Clerk of the House of Commons certainly offers no encouragement to believe that those courts, as time goes by, will become any less willing; indeed, he anticipates that they will be more so.
Both former Speakers and the noble Lord, Lord Forsyth of Drumlean, drew attention to the sheer status and standing of the advice of the Clerk of the House of Commons, supported by his fellow Clerks and by other legal counsellors. This is very serious and authoritative constitutional advice. Whether or not it was brushed aside, it must be given the most serious regard. I do not for a moment suggest that the Constitution Committee did not give it that most serious consideration, but I suggest that it is also for this Committee—for the whole House—equally to ponder carefully the advice he gave.
The noble Earl, Lord Onslow, the descendant of three Speakers, spoke with deep feeling and concern about these matters, tempting us to contemplate using
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What risk ought we to take, if any? I suggest that we should err on the side of great caution and continue to consider whether it may be possible to frame an amendment to increase the protection that the Bill genuinely seeks to provide for parliamentary privilege. I am the first to accept that, as I said in my opening remarks, my amateurish amendment may not achieve the purpose. Can that objective be better achieved by those who are far more competent than me in the drafting of legislation? We need to meet the concerns that have been put forward by the Clerk of the House of Commons. He is intensely concerned that the formulation that the Government have provided in the Bill is not sufficient to protect parliamentary privilege.
We are left with that very serious warning and all sorts of practical problems. I acknowledge that the Government will face these if the device of the certificate is found to be wanting in the sense that it makes proceedings in Parliament vulnerable to questioning in the courts in a way that Parliament has never previously permitted, the courts have never previously wanted and we all seek to avert. The Clerk’s advice is that we do not have that protection. The Clerk considers, contrary to what the Minister said, that human rights issues could arise in the circumstances, which it would be the duty of the Speaker to certificate. They would therefore, in principle, be justiciable in the European Court of Human Rights.
Against the background of all these considerations in this important debate, I do not seek to press my amendment. However, I hope that Ministers will reflect very carefully on this hugely important issue, to which we will return on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 42 withdrawn.
House resumed. Committee to begin again not before 8.34 pm.
Asked By Baroness Byford
Baroness Byford: My Lords, the creation of Richard Macdonald’s task force on the reduction of regulation is most welcome. Its report is due shortly, so I know the Minister will be limited in his ability to respond to
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My main concern is with regulations that affect agriculture, but I should point out that we all suffer from the increase in regulation and the resulting bureaucracy that was the hallmark of the previous Government. Only last Thursday, the noble Viscount, Lord Trenchard, stated that,
These post holders implement regulations, process an ever increasing tide of forms, and analyse the questionnaires. We have to fill in those forms and questionnaires, and often waste our time at the end of the telephone because government departments do not appear to read or answer our letters. Speak to any small or medium-sized business and they will tell you of the excessive time given to keeping up with the ever increasing bureaucracy. In a recent NFU farmer confidence survey, farmers cited regulation as the issue of most concern to their businesses.
Farmers suffer just as we do, but are also subject to regulation specific to them and to time constraints that do not affect many of us when we have to respond. Weather is all important. Getting the hay in at certain times is critical, just when regulations say that the registration of the birth of livestock is required. Delay in providing such required information usually results in penalties that are excessive by any standards. The NFUPro magazine last April noted that failure to supply a specific food chain information form prior to the slaughter of any animal may result in the carcass being condemned as unfit for human consumption. There are aspects of livestock control that are important. They should be regulated and the regulations strictly enforced. Other factors should be subject to guidelines, backed up by punishment of those who deliberately flout them. However, why should a farmer who has a number of fields dotted around a village have to fill in forms—movement records—for transferring his sheep from one of those fields to another? Can the Minister tell us whether these existing rules are likely to be reviewed?
Another aspect of regulation that fills me with despair is the lack of computerised information-sharing between Defra and other agencies, resulting in yet more unnecessary form-filling. For instance, in June farmers will be required to complete the census, even though three-quarters of the information is already held on their SFP application forms. This brings to mind the constant barrage of complaints from the farming community about faulty computer systems. The best known culprit is surely the Rural Payments Agency’s single farm payment system. My right honourable friend the Minister, Jim Paice, has recently acknowledged that the thing is so faulty that even he
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The original choice of how to interpret the European edict was always going to make implementation difficult, but Germany—the only other country to make the same choice—has managed it successfully. I wonder what lessons can be learnt there. Our systems, on the other hand, have cost the taxpayer billions of pounds in administration alone. On top of that, financial penalties have been levied by Europe for our failure to pay within the required timeframes. British farmers are let down by regulation in other ways, as well as through the RPA. The EU promulgates its directives and member Governments translate them into national legislation. The UK has been in the habit of ensuring that every agricultural and environmental directive is fully incorporated, by letter and in spirit, and gold-plated. Other Governments have not been so fastidious.
Our farmers, for instance, have to comply with a number of welfare standards introduced following European legislation that has not been enforced by other European countries. Many shoppers in the UK know full well that our pigs and poultry are produced in more humane circumstances than in our continental neighbours. Many retailers in the UK are, however, happy to purchase cheaper European products, slaughter and process them, pack them and label them—fully in compliance with existing regulations—as produced in the UK. This is not fair. It matters very much, as farmers who produce food compete in a global market. When someone undercuts their required price, they either accept less and take a loss or fail to make the sale—and take a loss. Good regulation would not allow this to happen, and I hope the Minister will be able to tell us when the grocery ombudsman will be introduced. This appointment is urgently needed.
Labelling is key to giving the consumer the right information on which they make their purchases. At a minimum, country of origin should be clearly stated on each product, along with assurance scheme logos. It is surely not right that Thai chicken comes from farms that have not been inspected by the EU for years. Beef comes from countries where FMD is endemic, but we may not inspect it before we accept it. The WTO will not allow us to exclude from our trading agreements livestock, or livestock products, produced under poor or non-existent welfare standards. There has to be a wholesale change in our culture. Instead of multiple regulations contained in multiple instruments of turgid prose, laying out the musts and the must-nots for our farmers, there should be guidelines in simple English. Instead of multiple on-farm and in-abattoir inspections for all, there should be a regime of spot checks and proportionate punishment for wrong-doing.
Richard Macdonald’s task force will identify ways to reduce the regulatory burden through the review of the relevant regulations and their implementation, as well as advise how best to achieve a risk-based system of regulation in the future. I hope that it will also consider achieving improvements to farm systems through the use of voluntary agreements. The Campaign for the Farmed Environment is just such a step. I hope that farmers will respond positively, or we may be faced with introducing yet another regulation.
We need a sea change in attitude between farmers and Government. We need to develop a culture of trust: trust of our farmers by officialdom and trust of Government by the agriculture sector. Regulation must be reduced. Regulation should be proportionate and reviewed regularly. Inspection must be reduced for those farmers involved in assurance schemes—they have surely earned their recognition. A clear labelling scheme should be introduced and trust restored.
If we are to meet the challenges of feeding the growing population, we must free up businesses from overregulation and allow them to innovate. I hope that the task force review will herald a new era of working together for the benefit of all.
Lord Grantchester: My Lords, it is a great pleasure to follow the noble Baroness, Lady Byford, and to welcome her return to your Lordships’ House following her recent illness. We have missed her contributions, and once again she has demonstrated her acumen by securing this important debate tonight, as also illustrated by the number of speakers it has attracted.
Reducing the regulatory burden on agriculture has been a challenge to all Administrations and each has initiated programmes to tackle the problem. It was unfortunately inaccurate of her, in her opening remarks, to try to single out the previous Administration in this respect. The impact on agriculture cannot be overstated. The noble Baroness referred to the recent NFU farmer confidence survey, where regulation was cited, at 64 per cent, as the highest negative impact on business. Anecdotally, one of my neighbours cited it as the reason behind his decision to quit farming.
I declare my interest as a dairy farmer in Cheshire. One part of my business was the import and export of cattle, which was brought to an end over the winter of 1995-96, and finally on 20 March 1996, by the announcement from Stephen Dorrell, Secretary of State for Health in the other place at the time. The effect and cost of that announcement was immeasurable. This present Government’s recognition of the problem was immediate, and demonstrated by the establishment of the Task Force on Farming Regulation, led by Richard Macdonald. It is due to report this summer. For the farming community, nothing short of a fundamental reanalysis is demanded. This must start with the analysis of the scope of each EU directive, policy initiative and UK programme objective. In this review, the influence that can be brought to bear by the supply chain, and especially the retailers, must be harnessed. I refer here to the various sector assurance schemes, freedom food initiatives and other marketing ploys that are demanded of agriculture. Mention should also be made of the proposed supermarket ombudsman.
Both government and industry should turn the telescope round and look at the regulation from agriculture’s point of view—the compliance costs, the information that has to be researched and retained, the added load on the business agenda and the incentives and benefits to be derived. Agriculture needs to be able to identity the relevance of the activity to operational improvements, business development and value added. Tackling regulation is often to tackle the symptom, when we really need to tackle the cause. Cutting red tape by introducing a one-in one-out rule is a case in point. Rather, I ask the Minister whether there should be a sunset clause imposed on each regulation, so that the need and relevance of each is systematically reviewed—I suggest five years as a suitable length.
The Conservative-led Government define their objectives in terms of cutting the deficit. I suggest to the noble Lord that nothing less than the effort that is put into that is demanded from agriculture to cut red tape. Has the noble Lord’s department interpreted activities in relation to deficit reduction by focusing on the costs of implementing regulations to government, of complying with regulation to industry and interpreting regulation to consumers? I very much look forward to the task force review and whether it can rise to the challenge of remapping the landscape.
Lord Taylor of Holbeach: I apologise to the noble Lord but we are under a lot of pressure for time. Three minutes is the limit, and we are now well in to the third minute.
Lord Grantchester: I have finished.
Lord Cameron of Dillington: My Lords, I also declare an interest as a farmer. In my allotted three minutes, I have two points to make. First, there is no doubt that regulation has helped UK consumers to develop greater confidence in the quality of their agricultural products and the way that we, as farmers, produce them. Taken individually, most regulations and audits have the sensible purpose of protecting the environment and reassuring the public, who are our customers. It is right that nothing should be taken for granted.
However, my second point is: why does there need to be so much duplication? Just to give some examples: a neighbour of mine starts a chicken business and he has to pay someone to help him get through the Environment Agency’s integrated pollution prevention and control clearance. Nowadays, you have to employ a professional who knows how to prove you are doing the right thing—doing it yourself simply will not work. Anyway, no sooner has my neighbour got the all clear from the Environment Agency than he has to pay for an environmental impact assessment for the planning authority, which asks all the same questions. One has to wonder why the planning authority will not accept the IPPC—which it would not—and why the form is not the same. There must be ways of consolidating them into one.
On our farm—and I used it as an example, because I do not think we are atypical—we also have numerous inspections and audits. We have comprehensive audits from our buyers such as Waitrose and Tesco. We have
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In an ideal world there would be one inspector who came on to my farm and really got to know how we work and went through everything everybody wanted to know or to test on the farm. He or she would be under contract to all the government bodies, all the associations and all the supermarkets to impose whatever standards they required on whatever farm. Even if the process took two days on each farm, and involved subsequent random checks, it would be a considerable saving in man-hours all round.
I feel sure my approach is simplistic, but I do hope that Richard Macdonald’s working party will come up with something along these lines.
Lord Plumb: My Lords, we all await the result of the Task Force on Farming Regulation led by Richard Macdonald, but I congratulate my noble friend Lady Byford on securing this time for a preliminary debate. As she said, every sector of society suffers from excessive burdens of red tape, rules and regulations, not all from Brussels, but in agriculture the time spent complying with a data request is increasing.
Regulations cost money—money that is being spent unnecessarily in times of recession. Under the previous Government, the Better Regulation Programme measured the administrative cost alone of meeting regulations in the private sector to be £458 million. This does not include the compliance cost of the general regulatory burden on business. The Institute of Directors estimates the cost of business regulations to be almost £112 billion, of which farmers are very much a part.
In this short debate there is no time to speak of the specific areas. I appeal to my noble friend the Minister and I hope he will agree that we end the so-called gold-plating of EU rules; that we reduce the number of forms needed to register a business and move towards a one-click registration model; that we cut red tape by introducing a one-in, one-out rule; that we end the tick-box regulation culture and target inspections on high-risk organisations and improving professional standards; and that we do as the noble Lord, Lord Grantchester, said and impose a sunset clause so that regulations can be regularly reviewed.
The burden of regulation, as we know, is at its heaviest with inspections, and different agencies have been found to inspect to different standards, bringing the looming risk of penalty and appeals on the understanding that regulatory requirements become crystallised.
Finally in the context of overregulation, planning authorities often cause problems, sometimes determined not by Government but by national parks and very
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The Lord Bishop of Ripon and Leeds: My Lords, I too am particularly grateful to the noble Baroness, Lady Byford, for pressing this question and enabling us to have time to discuss it. I want to make two points.
First, I know from my contacts just how pressurised an industry farming is. Clergy in the dales area of Ripon and Leeds—Swaledale, Wensleydale, Nidderdale and so on—report consistently on the pressure, sometimes desperation, felt by farmers, and mental illness has become a significant factor in the life of many agricultural communities. I pay tribute to the work done by clergy and ministers in helping to speak to farmers and to share the real pastoral concerns of farmers in those areas. Farm Crisis Network in particular helps those in difficulties and tries to give advice to those who have become entangled in the regulatory process.
No one doubts that regulation and inspection are needed in the farming industry as elsewhere, but the experience of inspection can often appear punitive rather than encouraging. How will the Government ensure that the inspectorate is helpful rather than punitive in its approach? There is a widespread feeling that the inspection regime is not proportionate or consistent, and this damages the health and well-being of the whole rural community. There is a need for better training of the inspectorate.
Secondly, can the Minister tell us how the independent role of the rural advocate is going to be expressed, given the abolition of that post? For more than a century a rural advocate in one form or another has been part of the countryside scene. I have heard nothing but praise for the way in which Dr Stuart Burgess has been able to express the voice of our rural communities. It remains crucial that there should be an independent way of informing policy-making, because the agricultural industry is particularly complex. The pressures are distinctive; the rural communities are very far from the concerns of London, or Leeds for that matter.
I have two questions. What do the Government have in mind to reduce stress on farmers by better training for inspectors, and how is the independent voice of the rural advocate going to be expressed in the future?
Viscount Brookeborough: My Lords, first I declare an interest in that I farm in a small way and have about 120 acres of trees. To add to the basic agriculture, I wish to refer to the regulatory burden on private commercial forestry, which is an important part of many farming enterprises.
The state, through the Forestry Commission, produces nearly 70 per cent of UK timber production, which is almost a monopoly, but it is also the regulator, which is an unhealthy situation for us all. For example, as a
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This brings in another issue—the distortion of the timber market—as the time taken in obtaining felling licences restricts the ability of producers to react to the changing demand and prices of timber in the short term. This does not apply to a grain producer who can sell where he likes. However, the private timber producer has to gain permission from a monopoly state producer and is therefore likely to miss the boat. In addition, the state producer is hide-bound by five-year plans. For example, during last year timber prices rose by more than 50 per cent for some packages. The sawmills that we use were screaming for more timber. A few weeks ago I was talking to a state forest harvesting manager and I asked him why they did not fell some very suitable timber that I knew of at this high price. His answer was that he could not do it as it was not programmed within that year of his five-year plan.
There are two points. First, it is no wonder that our state forests are so uneconomic if they cannot be more flexible. Secondly, the price logically became as high as it did as a result of demand and inflexible supply. Therefore in a period of low prices and oversupply the opposite might occur. State forests will continue felling and oversupplying and the price will go even lower. The forestry section of agriculture in the UK is not being allowed to operate in a free market. The burden of state regulation, control and interference in this sector is far too great, and I ask the Minister what the Government are going to do about it. Privatisation of some state forests at the right price might well be a good option, but the whole business operation needs looking at.
The Earl of Caithness: My Lords, globally, agriculture faces some long-term trends. As my noble friend Lady Byford said, there is a growing population, climate change, changing diet and competition for agricultural land. One would have thought that there were good opportunities for agriculture in the EU, but the EU is going backwards compared with the rest of the world. Our yields are flat. They are growing in America, Brazil and almost everywhere but in the EU due to overregulation. It was madness of the EU to bring in the regulation on chemicals and pesticides when there was no alternative. As a result, billions of pounds of investment and innovation money has gone out of the EU, and particularly out of the UK, which was so advanced in this field, and has gone to America and Canada. Jobs and some of our best brains have gone there—and one cannot blame them when one lives in this highly regulated environment, as we do as a result of the EU.
In the report on innovation in agriculture that we are undertaking in Sub-Committee D, we have evidence from Rothamsted Research, that:
“The disjunction between restrictive regulation in the EU and the lack of resources for agricultural research and innovation is probably the biggest threat to the long-term viability and competitiveness of EU agriculture”.
My noble friend Lord Henley has a huge job to turn that round.
More locally, could my noble friend tell me whether there are any plans to change the highly overrestrictive sheep regulations as a result of foot and mouth disease? Having tags in both ears has caused huge problems, including animal welfare problems, as some of the lambs are running around without ears, having been tagged too early. I have just heard that on Exmoor the tags that have been used, which had been authorised, are now no longer acceptable and farmers have to buy new tags.
I agree with my noble friend Lady Byford and the noble Lord, Lord Cameron, about farm inspections. They are highly costly and need to be restructured. But perhaps the greatest threat to farmers is the draconian subsidy penalties, whether for cross-compliance or anything else. Small farmers cannot tolerate that; they make mistakes quite innocently sometimes, and they are not the people to be persecuted, but sadly that is what happens. I hope that the Macdonald report will bring that to the fore and that the Government will change many of the regulations and the severe penalty regime that are currently in force.
Lord Rogan: My Lords, I, too, thank the noble Baroness, Lady Byford, for initiating this timely debate. Agriculture is a devolved matter, but we are speaking about British agriculture, and I trust that a few words and examples from Ulster are germane to the wider debate. Although it has been many years since agriculture was a mainstay of the British economy, even in a rural region such as Northern Ireland it is still an important source of employment and wealth creation. Indeed, during the recent recession and ongoing economic turmoil, Northern Ireland's agri-food sector has been one of the few industries to continue to grow and prosper. It has grown and prospered despite the best efforts of regulators in Belfast, London and Brussels to smother it in red tape.
Ridding the sector of unnecessary and burdensome bureaucracy is, as we have discovered in Northern Ireland, no easy task. We do not need a bonfire of red tape; rather, we need to adopt that robust, age-old farming practice of slash and burn. Two years ago, after not inconsiderable effort, the Ulster Farmers Union welcomed a report from the Better Regulation Task Force, a creation of the Northern Ireland Assembly, which was apparently going to stop the pernicious spread of farm bureaucracy. In particular, there were concerns about burdens caused by farm inspections, the single farm payment scheme, the administrative stress induced by TB policies, and the stupefying complexity of guidance notes and terms and conditions issued to farmers for every scheme and regulation imaginable under the sun. What, you may wonder,
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Talk, as they say, is cheap, and farmers in Northern Ireland want action, not words. They had been promised that the administrative burden on farmers and agri-food businesses would reduce by 25 per cent by 2013, saving them upwards of £15 million in the process. I rather fear that they will have to wait somewhat longer. There is nothing sedate or comfortable about the fiercely competitive market in which farmers operate; we are all part of the global village, with every possible foodstuff available in and out of season. There is no fat in the industry and no capacity to carry unnecessary administrative burdens. I commend the noble Baroness for securing the debate and encourage those responsible for regulating to pause before putting pen to paper and to consider the anxiety and annoyance that they spread in farmhouses throughout the length and breadth of the British Isles.
Lord Gardiner of Kimble: My Lords, I thank my noble friend Lady Byford for securing this debate and express my own delight to see her back in harness. I declare my interest as a partner in the family farm, a member of the NFU and a board member of the Countryside Alliance. It seems almost a national condition to embrace bureaucratic regulation, gold-plate it and then complain about the red tape that we have to endure. We need to focus on trusting people more and, whenever possible, to have a much lighter touch. Of course we all recognise the need to have high standards, especially with public and animal health in the spotlight. Yet regulation must be fair and proportionate and take into account that British farmers already have some of the highest standards of animal welfare in the world.
We must create an environment in which small businesses across the country in every farm can recognise a helping hand and not a heavy one. Tomorrow the Countryside Alliance rural awards will be held in your Lordships' House. The winners will be beacons of rural excellence, yet across the board regulation is identified as stifling initiative and enterprise.
One of the biggest regulatory issues facing British livestock farmers is the complex and ever-changing rules surrounding animal movements. Rather than evaluating and improving existing regulations, layers of regulation have been overlain by further layers, in many cases involving complex duplication. Until recent changes implemented by the Government, the bizarre situation existed whereby farmers had to notify cattle movements either on line or by post within three days. Many were based in uplands where there is still limited internet access and the returning envelope was supplied by second-class postage. For some of the most remote
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The Earl of Sandwich: I declare an interest as an owner and joint manager of farmland in West Dorset.
Two out of three farmers complained to the NFU last year that red tape was their greatest concern—greater than prices or the economy or the CAP. Defra admitted that the cost of its regulations had reached £458 million, with the greatest impact on farmers. The good news is that common sense seems to have arrived, and the new Minister, Jim Paice, believes that more trust should be vested in farmers, because they know which practices work best and which do not—and he is one.
I am amazed at the stamina that farmers and owners have displayed in coping with so many rules. The culture of political correctness has to change, and I am sure that the Minister will set that out in his reply. We need a new official attitude that states that if we do not need it, we do not want it. Rules intended as improvements have become burdens. With our economy under pressure we cannot afford the luxury of unthinking legislation. There must be no gold-plating of EU rules, especially when it is known that other member states do not comply, as the noble Baroness said.
Does the Minister agree with the NFU that the impact assessments, while they may include a section on rural proofing, are,
I support the Commission’s new proposals on the progressive greening of the CAP and more sustainable agriculture, but I am also concerned about the duplication among the various environmental agencies. We have small tracts of woodland and pasture, including SSSIs, that involve at least four agencies: Natural England, the Countryside Agency, the Forestry Commission and Defra. Can the Minister assure us that designations need not involve so much bureaucracy in future?
Finally, I turn to badgers. Here I can draw directly on our experience in West Dorset. When are we going to follow the Welsh—subject to the court case—and issue farmers with licences for four-year culls in definable areas of the south-west? I know that this is not without problems. They have been outlined in an excellent Commons briefing paper.
Furthermore, can Defra further simplify the bovine TB testing procedure? One farmer whom I know complains that Defra is not collecting animals fast enough, perhaps because of the shortage of vets. The
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Is the Minister aware that the testing rules are applied differently from county to county? For instance, in Devon, tested animals with the correct ear tags and showing fitness to travel are collected faster because they do not require an inspection, so much more must be done online, and this of course is the most welcome form of deregulation.
Baroness Quin: My Lords, normally when winding up for the Opposition, I would hope to be able to acknowledge most, if not all, of the speeches. However, given that I have only three minutes, as others do, I think that even if I attempted to list all the names of speakers I would run out of time. Therefore, I hope that noble Lords will excuse me for not picking up on many of the excellent points that have been made in this debate. I would like to compliment all noble Lords who have spoken on having been able to make quality speeches within such a restricted timeframe. I join others in congratulating the noble Baroness, Lady Byford, both on securing this debate and, given that she first tabled it some time ago, on showing patience and tenacity in managing to bring the debate forward today.
The issue of the burden of regulation in agriculture has been around for a long time, as my noble friend said. Indeed, I remember complaints about the gold-plating of EU directives from the days when I sat on the European Parliament’s agriculture committee, so ably chaired by the noble Lord, Lord Plumb, so I know that these issues have been around a long time. I believe that the previous Labour Government were involved in a number of efforts to seek to reduce the regulatory burden in agriculture from 1998 onwards. Indeed, there was the Hampton review, the Better Regulation Task Force report, Regulation—Less is More, the attempts by Defra to try to simplify regulations and legislation, and some results that the department achieved in consequence.
From these Benches I certainly do not oppose the current Government’s efforts to tackle this problem and indeed wish the Macdonald review every success. I would like to ask the Minister a little bit more about the timing of the review. In the initial announcements of the task force, it was intended to report early in 2011. I also know that issues of significant concern were supposed to be raised with Ministers as soon as they arose through that process. It would be good to know from the Minister whether any such issues have been raised up to now and whether he can give us an update on when the report will be published. Finally, in order to respond fully to the comments that have been made in this valuable debate today, I ask the Minister to ensure that we will have a debate at much greater length once the review is published and its recommendations have been established.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley): My Lords, I declare my interests as set out in the register. First I will deal with the last point made the noble Baroness, Lady Quin. Obviously that will be a matter for the usual channels, but I am sure that she and others will find a way of debating Mr Macdonald’s report when it comes through in due course. As regards the timing of the report, I appreciate that there has been slippage, as there often is on these matters. However, it is very important that these things are got right, as it were, before they come out. The current plans are that the report will appear in May—this year, I stress—and I look forward to discussing it at that time.
I also thank my noble friend for bringing forward this debate in the dinner break, and I thank all other noble Lords who have spoken. I think all noble Lords will appreciate that I will not have time to deal with all the questions that have been put to me; nor would it be appropriate for me to respond to all of them as quite a lot are matters that Richard Macdonald will be considering in his report. I will briefly run through some of the suggestions that have been made, then say a word or two about the Government’s general attitude to regulation, about the Macdonald review and how it was set up, about what it is proposed should be done, and a little more about the timescale. I hope that will satisfy noble Lords who have spoken.
As I said, there have been a large number of questions put to me. For example, my noble friend Lady Byford, talked about the lack of proper IT communication between Defra and its various agencies. I accept that we do not always get these things right and we could do more. She also talked about the groceries code adjudicator and when we were likely to see legislation on that. I dealt with that matter a day or two ago in relation to the Public Bodies Bill. It is in hand and we hope to be able to produce something in due course. The noble Lord, Lord Grantchester, talked about the need for more sunset clauses in all regulations, again something that we would like more of. However, I cannot make any categorical assurance about that, particularly in advance of the report. The noble Lord, Lord Cameron, spoke of there being far too much duplication. Again, we should look at that and I very much hope that Richard Macdonald has it in hand.
My noble friend Lord Plumb spoke of having no gold-plating, which the noble Earl, Lord Sandwich, echoed. We all think that is right and we do not want gold-plating of matters that come from Europe. My noble friend also talked about the need for more one-click registration modelling. Again, I accept that point, as it ought to be looked at. He also talked about targeting inspection on high-risk people rather than on others, which he made a good case for. I am sure that Richard Macdonald will look at it. He also made the good point that we should make more good use of waste. I assure him that I have very much been involved with our waste review, which is due out in May or June this year. I hope that my noble friend looks forward to the publication of the waste review, which obviously goes much wider than farming, in due course.
The right reverend Prelate spoke of the need for better training of the inspectorate. Obviously, we can always improve the training and I, again, take that on board. I also note his comments on the role of the rural advocate, although I think that I dealt with that when I spoke only last Wednesday on this matter on the Public Bodies Bill. On forestry the noble Viscount, Lord Brookeborough, talked about the conflicts between the dual roles of the Forestry Commission. Again, we have highlighted that in the past and the new panel on forestry announced by my right honourable friend the Secretary of State will look at that in due course.
My noble friend Lord Caithness looked at some of the problems facing sheep farmers with EIDs. I can assure him that my right honourable friend the Minister for Agriculture, Jim Paice, certainly highlighted this matter to Commissioner Dalli when he came over to England. I suggested that it might be quite a good idea—I think this suggestion originally came from my noble friend the Duke of Montrose—if we took Commissioner Dalli off to one of the big sheep markets such as Longtown, which is very near me, to show him what confusion EIDs were causing and what chaos there was with just how many were falling off the sheep.
I am also very grateful to the noble Lord, Lord Rogan, for reminding us that although I am a mere English Minister in these matters, the debate was related to British and UK agriculture. I note what he said about the position of Northern Ireland and the other devolved parts of the United Kingdom. We certainly discuss all these matters with our devolved counterparts. At the moment, we are in rather a strange phase in that although they are still in office, we do not know who they will be in a short while, but we will resolve that in due course.
My noble friend Lord Gardiner spoke about animal movement regulations. Yes, I agree that they are very important for disease control, as my noble friend made clear, but that is something which we have to get right. Again, I hope that Richard Macdonald will look at that in due course.
The noble Earl, Lord Sandwich, raised that perennial and very tricky question about badgers and bovine TB. All I can say is that any decision we make will be based on the scientific evidence put in front of us. We will obviously watch carefully what happens in Wales and examine it. The important thing is that we make the right decision at the right time, based on the evidence put before us. I and my colleague Jim Paice have already taken advice from our scientific adviser and the Chief Scientific Adviser to the Government. That advice will be listened to and studied when we make the appropriate decision.
I want to say a word or two about the Government’s general attitude to regulation before I get on to Richard Macdonald and his review. Only a week ago, my right honourable friend the Chancellor of the Exchequer made the importance of better regulation quite clear in his Budget Statement. I stress “better regulation” rather than deregulation; the important matter to get across is of getting regulation right. He made clear the importance of that in supporting growth and a green economy. That goes much wider than agriculture and across the whole of industry.
In doing so, the Chancellor spoke of our commitment to reducing red tape on businesses to allow them to grow and to support our economy. That was supported by proposals for regulatory reform. To support that objective, as we know, my right honourable friend the Minister for Agriculture announced the establishment of the industry-led task force on agriculture last year. I stress that an independent, industry-led task force to deal with these matters. I regret to say to the noble Lord, Lord Rogan, that its remit covered purely England but I am sure that the devolved Administrations will want to look at the matter. The task force was set up to look at ways of advising the Government on improving approaches to regulation affecting farmers, growers and food processors. The key to this is that the task force is both independent of government—we await its report with interest—and led by industry. As I said, it was set up in June last year. The Government want to understand what farming and food processing business are concerned about and what the solutions to their problems might be. That is why we have asked the task force for advice. I understand that the chair and members are now in what one might refer to as the home straight and are preparing for their final meeting on 4 April, which is next week. We hope that they will publish their report later in the spring. We are looking to see that happen in May, just after the local elections.
I can inform the House what we have asked of the task force. We invited the chair and members to be bold in ambition and wide-ranging in vision. We have made clear to the task force that the context for its work was—I quote from its terms of reference—
“In support of a more competitive farming sector that contributes to the economic recovery”.
We asked the task force to,
We asked the task force to do so—I stress this element of its remit—
I give an assurance to the House that this review is not about compromising on outcomes or standards. It is not a “bonfire of regulation” that some have demanded and others have decried. It is a way of maintaining standards while moving towards a more risk-based approach of doing business. It is about better regulation—I again stress those words.
To address three aspects of the task force’s terms of reference, it has focused on three main types of problem. First, it has set out to identify disproportionate and overcomplex process, implementation or enforcement, with a view to changing to a simpler, risk-based and outcome-driven approach. Secondly, the task force has looked at unnecessary or outdated measures with a view to revocation or, where they are EU-based, renegotiation. It is important to remember that it is always possible to renegotiate matters in Europe, difficult though it might seem at times. Thirdly, it has aimed to identify the gold-plating of regulations in the past with a view to making recommendations for alternative approaches and the removal of unnecessary burdens.
The farming industry has risen to the challenge of collecting evidence and has provided ample food for thought. More than 350 responses have been received from individual farmers, trade associations and non-governmental organisations. Because this is an independent report it is not for me to pre-empt what the task force will say but it has made it clear that the main thematic areas of its review are farm animals, growing and crops, food processing, business and management, paperwork, environment and land management, and the single payment scheme and cross-compliance. Looking at overlaps and duplication between inspection processes is also an important part of the review.
I do not think that I ought to try to pre-empt what might come out of that review or—this is equally important—how we will respond to it. However, I welcome this opportunity to have said a little about how we set up the review and what we hope will come of it. I again thank my noble friend for introducing the debate.