By 251 votes to 219 the House of Lords has sent the Fixed Term Parliaments Bill back to the House of Commons.  This is the Bill that says that the next General Election shall be in May 2015 and every five years after that.  When the House of Lords had earlier considered the Bill in detail it had amended it so that five year Parliaments were not automatic but that immediately after each General Election Parliament should decide whether the fixed term provisions should be applied or not.  The House of Commons had reversed this amendment and that reversal was considered by the House of Lords yesterday afternoon.

By a majority even larger than when the House first passed the amendment, it was agreed to “insist” on the amendment.

The case was put forcefully by the former Cabinet Secretary, Lord Butler of Brockwell:

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, the Minister in another place and the Minister in this House today were critical of the drafting of your Lordships’ amendment. The Minister in another place was particularly critical of Section 7(4), which states that a number of parts of the Bill would only have effect until the first meeting of a new Parliament. His argument was that this would cause confusion by reviving provisions repealed by the Bill, and the Minister in this House said something similar today. This, too, suggests to me that the Government’s arguments are weak. We all know that if the Government were minded to accept the principle of the amendment, it would be open to them-and indeed normal practice-to table a revised set of amendments in order to avoid technical defects in your Lordships’ amendments.

It is clear from the debates in this House and in another place that many Members, on both the government Benches and the opposition Benches, are uneasy about legislating in this way to make a permanent change to our constitutional arrangements without proper consultation, preparation or consideration. It is open to your Lordships, even now, to ask the Government in the other place to think again and provide an opportunity for future Governments and Parliaments to make their own decision whether to subject themselves to this legislation. It would cause the Government no loss to do so, and it is the proper, constitutional way to proceed. I beg to move.”

And finally:

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

The House of Commons will now have to reconsider the issue again in September.

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