Examination of Witnesses (Questions 82-113)
Professor Vernon Bogdanor and Dr Ruth Fox
27 OCTOBER 2010
Q82 The Chairman: Good morning, and
thank you both very much for coming. As I said when we met outside,
we have approximately one hour for this session, in which we obviously
need to get through a great deal of material. Thank you both for
your background papers, which are very helpful indeed. As you
will be aware—you are both old hands at this process—this
session is being recorded so everything will be on the record
and we will conduct the business from the start as a recorded
session. I know that we have an understanding about the publication
of the paper submitted by Professor Bogdanor—I was about
to say Lord Bogdanor, so excuse me for that—but we understand
that point. Given that you have both kindly already provided written
remarks, I do not know whether either of you want to make opening
statements. Perhaps for the record you could introduce yourselves.
Vernon Bogdanor: I am Vernon Bogdanor. I am
a research professor at King's College London.
Ruth Fox: I am Dr Ruth Fox. I am Director of
the Parliament and Government Programme at the Hansard Society.
Q83 The Chairman: Thank you. I will
kick off by asking you both—from your written submissions,
I think that you have slightly different views on this—what
you see as the potential advantages and disadvantages of having
a fixed-term Parliament. I was rather interested in Professor
Bogdanor's remarks in paragraph 22 of his paper, where he says,
"it is not clear to me that it would make a beneficial difference."
Vernon Bogdanor: Let me begin by saying how
glad I am that the Committee is considering this very important
constitutional issue. As is well known, the proposal for fixed-term
Parliaments was in the Liberal Democrats election manifesto—and,
I think, in the Labour Party manifesto—and its next manifestation
was in the coalition agreement, where the proposal was not given
a constitutional status but implied that the coalition would not
dissolve itself without the support of both parties. In my view
this proposal raised no constitutional issues. But the Fixed-term
Parliaments Bill seeks to introduce an important change in the
constitution. I think it fair to say that one reason why the fixed-term
Parliaments proposal was included in the election manifestos of
two parties was as a reaction to the expenses problem. A number
of constitutional proposals were produced in response to that
issue, some of which were perhaps ill thought out. My first reaction
was that such a proposal is a somewhat perverse response to the
expenses scandal, because the main popular concern about expenses
was that there ought to be more popular control over Members of
Parliament, who had become perhaps too insulated from public opinion.
Proposals such as the recall of MPs were designed to deal with
that. However, the fixed-term Parliaments proposal would achieve
the opposite effect, because it would tend to insulate Members
of Parliament from popular pressures. That seems to me a point
worth noting. Another point worth noting is whether the constitution
should be changed in this rather hurried way without very much
discussion. As I say in my written submission, the only Western
European country with a parliamentary system that has a pure fixed-term
Parliament is Norway. Any change to that system in Norway requires
that one first produce a proposal and then, following a general
election, secure a two-thirds majority on it. That is, of course,
very different from our own procedures. It may be that we need
a change in our constitutional rules or a change in our constitution
in general if, as is possible, we are moving away from a period
of having a single-party majority government, which has been the
norm since the war but was not the norm between the wars, when
we had minority governments and coalitions. It is possible that
we may be moving towards a multi-party system. If that is the
case, we will have regular hung Parliaments and it may be that
we should develop new constitutional rules. However, I am not
clear that the current proposal is the way to do that. I cannot
see that the proposals that have been produced, which are fairly
ambiguous in some ways, will necessarily provide much in the way
of improvement.
The Chairman: We will certainly come
back to the process of achieving constitutional change. However,
I want to ask Dr Fox first for her overview on fixed-term Parliaments,
however those might have been introduced.
Ruth Fox: Building on Vernon Bogdanor's point
about the fixed-term Parliaments proposal being a response to
the broader political crisis post the expenses issue, I would
endorse that and point out that many of the constitutional, political
and parliamentary reforms that have been proposed have had very
little to do with resolving the expenses crisis. The link between
the two issues has been somewhat tenuous. Certainly, looking at
priorities of the public for political and constitutional reform—as
I highlight in my written submission to the Committee—I
think that our annual Audit of Political Engagement study
suggests that there is little public interest in addressing fixed-term
Parliaments as a priority. On the general principle of fixed-term
Parliaments, I think that there is something to be said for introducing
a restraint on the prerogative power and on the ability of a partisan
Prime Minister to fix the date of the election. However, I am
not sure that moving to a system in which Parliaments are generally
fixed for a four or five-year period means that having an earlier
election is necessarily a bad thing. I do not think that having
an earlier general election needs to be seen as axiomatically
a bad thing. My problem with the Bill—and with the approach
that has been taken to a large extent—is that, in some ways,
the proposal is a missed opportunity because it focuses the mind
very much on the end of the term and on ways to bring about an
early dissolution if such a thing is required. However, a term
has both a beginning and an end. If the Bill had been handled
differently with a different timescale to allow for greater consideration,
an awful lot more could have been done to address some of the
planning and timetabling issues that having a fixed term would
enable us to fix. Having that planning capacity would enable us
to address some of the issues that arise at the beginning of the
term. The current Bill does not do that.
The Chairman: Thank you. Lord Rodgers
wants to pursue the question about the process of introducing
the proposal.
Q84 Lord Rodgers of Quarry Bank:
If I may, I would like to look back at the history of the issue
and at previous practice. In paragraph 3 of his written submission,
Professor Bogdanor suggests why the coalition might have dreamt
up—although he does not use that phrase—the idea of
introducing fixed-term Parliaments. Will he say a word or two
about the history of that? When the proposal suddenly popped up,
I assumed that it had been discussed frequently in the past, but
I cannot remember that. I have never read manifestos, but I do
not think that it has featured in many manifestos in the past.
Some history on that would be helpful. In the same context—again,
this is not mentioned in the written submission, so I may be putting
words in his mouth—the coalition argues that we should move
from the Executive to Parliament and from Parliament to people.
The written submission points out that there have been 18 Parliaments
since 1945. If we had had fixed-term Parliaments of five years,
we would only have had 14. How would that be reconciled? I have
a further specific two questions, if I am allowed, the first of
which is on the consequences of having fixed-term Parliaments.
Given the reference in Professor Bogdanor's paper to "hypothetical
circumstances", I wonder if we had had a fixed-term Parliament
in 1950 or 1951—it is very difficult to tell, of course,
but the submission reflects on this—what would have happened
at that time. As the paper says, the early dissolution in 1951
was a very unusual case in that Attlee resigned and gave up. If
a Prime Minister gave up in that way, could an early general election
happen? My second question, if I may, is on the reference that
the written submission makes to Prime Ministers seeking a "personal
mandate". Why do we not have a fixed—that is, obliged—personal
mandate and always have an election whenever a Prime Minister
changes? As the submission points out, there may be a change not
only of individuals but of policies, which may undergo very significant
changes. Why do we not have a new Parliament when we change Prime
Minister?
Vernon Bogdanor: There were a number of questions
there, which I will do my best to answer. On the history of the
proposals for fixed-term Parliaments, I understand that the Liberal
Democrats have long taken the view that there should be fixed-term
Parliaments, which they see as a corollary of proportional representation
something that they have favoured for a long time. Of course,
the issue came up after the general election because the Liberal
Democrats were naturally worried that, if they entered into a
coalition with the Conservatives, a Conservative Prime Minister
might dissolve the coalition at an unwelcome time for the Liberal
Democrats in the hope that the Conservatives could then win an
absolute majority. Therefore, part of the coalition agreement
was that Parliament could be dissolved only if 55 per cent of
the MPs agreed, which in practice would require the agreement
of both the Conservative and Liberal Democrat MPs, because if
the Liberal Democrats switched to a different coalition, the Liberal
Democrats and the Labour Party would not be able to achieve the
necessary 55 per cent. In effect, the coalition agreement gave
the Liberal Democrats and the Conservatives the choice of when
to dissolve Parliament and included an assurance to the Liberal
Democrats that the coalition could not be dissolved against their
wishes. However, after various criticisms, that became transmuted
into the form in which it now appears in the Bill. That is the
history of it. On the issue of the 1950-51 Parliament, which raises
a very fundamental question, I think that Attlee took the view
that the Parliament was not viable. He had an overall majority
of five, and his position had been weakened by the resignation
of two Cabinet Ministers, Aneurin Bevan and Harold Wilson, who
disagreed with the spring 1951 budget. He dissolved the Parliament
in the hope, obviously, that he would get a working majority,
but he was doubtless aware that he might be defeated. With a fixed-term
Parliament, it is not clear that he could have done that. Therefore,
a lame-duck Parliament and government would have had to have hobbled
on. That is the danger of provisions that would make it more difficult
to dissolve Parliament. I believe that this is a fundamental point:
the more difficult it is to dissolve Parliament, the more likely
it is that there will be a lame-duck government, which, even if
it can survive in Parliament, cannot govern very effectively.
I think that was the problem in 1951. On the question of having
a personal mandate, I think that issue arose among the public—not
quite a majority of the public but nearly a majority—when
Gordon Brown replaced Tony Blair as Prime Minister in 2007. I
do not think that the issue arose when John Major replaced Margaret
Thatcher in 1990 or when James Callaghan replaced Harold Wilson
in 1976. Perhaps the issue arose in 2007 because our politics
has become more presidential than it was. People seem to think
that the colour of a government depends much more on the Prime
Minister than was the case formerly. It is interesting to note
that shortly before the election, David Cameron put forward a
proposal similar to what Lord Rodgers has suggested when he said
that a new Prime Minister ought to be required to go to the country
within six months of taking office. Of course, there is no provision
in the Bill for that suggestion, but I think that it is well worth
considering. Another issue, of course, was that some people thought
that the Labour Party might do better under a different Prime
Minister than Gordon Brown between 2007 and 2010, but they were
deterred from securing that change because it was argued that,
if there is to be a second non-elected Prime Minister within the
same Parliament, one really ought to go to the country to get
approval for it. That has never happened in the 20th century,
apart from during the odd conditions of wartime in 1940, when
there was a second change of Prime Minister in the same Parliament.
However, if we are moving into a hung Parliament situation, it
is much more likely that we will get a change of Prime Minister
within the same Parliament. As I said, a deterrent to changing
the leader of the Labour Party was the idea that the Government
would have to go to the country immediately, perhaps at a time
when the Labour Party was not very popular. I think that the proposal
that a new Prime Minister should seek a mandate deserves further
consideration.
Q85 Lord Rodgers of Quarry Bank:
I have a further brief question on the pre-history of the proposal.
In effect, until the past six months, has there been no serious
constitutional discussion on fixed-term Parliaments over the past,
say, 50 years or more?
Vernon Bogdanor: That is right. Primarily, the
proposal has been made by the Liberal Democrats, which has been
the minority party, and the idea has been associated with proportional
representation, which has not really been at the forefront of
the political agenda.
Ruth Fox: I slightly disagree with that. The
Liberal Democrats have been at the forefront in promoting the
proposal, but my understanding is—I do not have the dates
to hand—that the proposal has been in the Labour Party manifesto
previously. I do not think that the proposal appeared in the 1997
manifesto, but it has appeared previously. I think that I am also
right in saying that the idea was an aspect of major study of
the Plant commission in the late 1980s or early 1990s. Therefore,
fixed-term Parliaments has been a running issue in Labour Party
discussions, although it did not make it into Labour's constitutional
programme when the party was in government. I understand that
the Labour Party is supportive of the idea in principle. The Conservative
Party has previously resisted the proposal, although, as Vernon
Bogdanor has alluded to, David Cameron expressed an interest in
the constitutional position of the Prime Minister in the context
of the politics of the previous Parliament.
Q86 Baroness Falkner of Margravine:
In addition to what Dr Fox has said, there have also been private
members' bills on the subject in Parliament. For example, Dr Tony
Wright was not a Liberal Democrat. He was a senior constitutional
expert. I seek a bit of clarification. As I understand the Liberal
Democrats' policy, the fixed-term Parliaments proposal was not
tied into proportional representation as closely as has been suggested
by Professor Bogdanor. As I saw it, there was a constitutional
bundle, of which fixed-term Parliaments was one aspect. On that
basis, there has been an unbundling and a take-what-you-like or
take-what-is-feasible approach has been taken. Of course, there
is also movement towards a different electoral system.
Vernon Bogdanor: Of course I accept that point,
but the notion of a fixed-term Parliament takes on a very different
character in the context of proportional representation. That
is why I think that analogies from Norway and Germany are not
terribly relevant. With proportional representation, a dissolution
offers much less advantage because it is very unlikely that a
party will win an overall majority. Overall majorities are not
very likely with proportional representation—for example,
there has never been a party with an overall majority in the Scottish
Parliament—so the advantage to be gained from an early dissolution
is much less. With a majoritarian system, such as our current
first-past-the-post system or even possibly the alternative vote
system, there may be much greater advantage to be gained from
a dissolution. I think that the idea takes on a different colouring
with proportional representation.
The Chairman: That brings us to the question
of the length of time of the fixed-term Parliament.
Q87 Lord Renton of Mount Harry: Dr
Fox's evidence on behalf of the Hansard Society makes the following
point very strongly: "Parliaments which have lasted into
a fifth year have tended to be ones where the Government has,
in reality, run out of steam but is waiting on the turn of events".
Speaking as someone who, in the House of Commons over many years,
saw both four-year and five-year Parliaments, I confess that I
take a totally different view. With a four-year Parliament, the
Government start worrying about the election at the end of the
third year and already start to think at that time about which
bills should be introduced in the third year and which should
be kept until the fourth year that might be attractive to the
electorate and do the party some good at the last moment. For
that reason as much as any, I would go—probably contrary
to many of my colleagues around the table—with a fixed five
years. In the third of its five years, a Government will feel
absolutely safe and will introduce bills that it knows will be
difficult and unpopular and it need not start worrying about the
election and about introducing popular bills and so forth for
another year. I think that that is a very valid argument for having
a fixed five-year Parliament. Your comments, please.
Ruth Fox: On the length of the term, my preference
is for four years. Since 1945, there have been a number of Parliaments
of four years and of five years, as well as a number that have
been for four and a half years. I do not get too hung up on the
issue. I take that point, which arises from experience in government,
but I suspect that the perception from outside would probably
be somewhat different. I also think that the issue probably matters
less than it would have done 20 years ago because, to all intents
and purposes, we live in the age of the permanent campaign. Election
campaigns do not kick off just a month before the election date
in the way that might have been the case 20, 30 or 40 years ago.
The nature of campaigning has changed and the nature of how parties
approach those things has changed, so I think that the issue is
possibly less important. I think that there has been a consensus
around terms of four years. For example, the history—I refer
to previous private members' bills, the Plant commission and so
on—suggests a general consensus around four-year terms.
In addition, other parliamentary systems around the world tend
to have a term of four years rather than five. To my mind, the
deciding factor, in the event of a split in political opinion
over whether the term should be of four years or five, is the
danger that people might perceive five years as being in the partisan
interests of the current Government, because of what the Government
want to achieve in getting through their economic measures and
establishing stability and so on. There is a risk that, if there
is no political consensus on the issue, the length of the term
could become a driving point for future reform of the legislation
and would actually create the opportunity for Members to revisit
the issue quite quickly. My preference would be that such constitutional
matters should be introduced on a consensual basis, so that we
do not create those strategic driving points to which Members
can keep coming back to the issue for further revision. I am not
too hung up on the length of the term—there are pros and
cons either way—as it comes down to a matter of preference.
However, for those reasons, I would go for four years.
The Chairman: Professor Bogdanor, do
you want to add anything?
Vernon Bogdanor: No, I share Dr Fox's view.
Q88 Lord Renton of Mount Harry: I
want to ask about one other point first. Does the availability
of information on the internet make a difference? With the internet,
it is very much easier for the ordinary citizen to find out what
is happening. I am not necessarily saying that that makes a five-year
Parliament more likely than a four-year Parliament. I am interested
in your view about how the internet will affect, for example,
what constituents think about their MP.
Ruth Fox: The question probably ought to be
put to my colleague who is head of the digital democracy programme
at the Hansard Society—he would be able to advise better
than I can—but I would not overstate the influence of the
internet on politics, elections and so on. Parliament's website
is very good, but who it reaches is perhaps an issue. The reality
is that that most people still get their political news via the
TV, newspapers and so on. In a sense, one problem that we will
come up against in responding to the attitudes of the public is
that the media and communications mechanisms are driving a very
personalised and therefore presidential style or approach to politics,
which requires a robust chief executive leader figure at the head.
That might come increasingly in collision with the realities of
parliamentary politics in an age of hung Parliaments. Culturally
and politically, there is the potential for clash there. I do
not think that the internet and other media mechanisms necessarily
provide ways in which that can be resolved.
The Chairman: Coming back to the present
Bill and the proposal for five-year terms, we have received evidence
about issues such as the clash of dates. I think that Lord Crickhowell
wants to ask about that.
Q89 Lord Crickhowell: Before I ask
my two questions on that issue, I must say that the most important
issue from all the evidence that I have heard so far is the point
that is raised in the final paragraph of Professor Bogdanor's
paper, which asks whether the proposal will make Government more
answerable to the people. Professor Bogdanor cites the example
of the Attlee Government; in previous witness sessions, I have
cited the event that made me a Minister in 1979, following the
defeat, by one vote, of the Callaghan Administration. Callaghan
immediately said, "I am going to have an election".
Under the Fixed-term Parliaments Bill, we will have 14 days for
someone to try to cobble together an alternative. One pictures
deals being done with the Irish or the Welsh or the Scots, in
various combinations, to allow a weaker government—of the
kind to which Professor Bogdanor refers in Attlee's situation—to
soldier on without allowing the people to have their say. To me,
the simple issue with the Bill is that it could weaken, rather
than strengthen, the role of the people.
Vernon Bogdanor: Yes, I very much agree with
those comments. In the event of a hung Parliament, there can be
a conflict between two principles: the principle of parliamentary
government whereby the government is accountable to Parliament
and the principle of democracy whereby a government is accountable
to the people. Normally, in the single-party majority governments
that we have had since the war, those principles coincide. Where
there is a conflict—my perspective is very similar to Lord
Crickhowell's—I think that accountability to the people
should be the prime factor. We ought to be careful before doing
anything that weakens the ability of a government to govern effectively.
Q90 Lord Crickhowell: Thank you.
That strengthens the view that I have been forming throughout.
Let me come to my specific question. A five-year term will result
in a clash with the elections of the devolved Administrations
in 2015 and every 20 years thereafter. That is an interesting
clash in respect of involving the people. Certainly, the view
of the devolved Administrations is that discussion of their performance,
their record and their policies will be overwhelmed by the arguments
about the national situation. Is it desirable to separate those
out to deal with that linkage?
Ruth Fox: Ideally, yes. The danger is that we
could end up in a situation in which—although to put the
matter in perspective, this would happen only every 20 years—a
number of different elections take place on different dates within
the same year. Although I am all in favour of accountability to
the public, I am not sure that the public would be terribly in
favour of having to go to the polls for a general election, for
a Scottish Parliament election and for Scottish local elections.
Clearly, some political and administrative difficulties could
arise. The electoral returning officers have already made clear
that, from their perspective, running two elections on the same
day with different timetables and different constituencies would
cause some problems. Another issue is how the Scottish Parliament
and the Scottish people perceive the respect that this place has,
and that the Government has, for the devolved settlement. I have
difficulties with some solutions that have been suggested. For
example, it has been suggested that the general election date
could be moved to October, but I am not convinced that that is
a great idea. I cannot claim any credit for this, but I know—from
chairing a fringe meeting at the Scottish National Party conference
in Perth a couple of weeks ago—that Professor John Curtice
has suggested that the issue of respect for the Scottish Parliament
elections, which has come up in the context both of this Bill
and of the Parliamentary Voting System and Constituencies Bill,
could be dealt with by allowing the Scottish Parliament to agree
to the general election date that the Bill proposes if, in return,
the Scottish Parliament could hold the Scottish Parliament elections
on a date of its choosing. At the moment, under the Scotland Act
1998, the date of Scottish Parliament elections is determined
by Westminster. A small amendment could be made to the Bill to
insert a new clause amending the Scotland Act to enable the Scottish
Parliament to determine the date of its elections. Professor John
Curtice made a fairly compelling case that the Scottish Parliament
elections could be moved to October because of the nature of that
Parliament's arrangements. Given that the Scottish Parliament
elections in May can be followed by a period of up to 28 days
for the formation of a government, and given that the school holidays—and,
therefore, the recess dates—are earlier, there is currently
a very constrained period before the summer recess.
Lord Renton of Mount Harry: It is snowing
in Scotland by October.
Ruth Fox: Well, there seemed to be some enthusiasm
for the proposal. However, that would require an amendment to
the Scotland Act. There are pros and cons either way. At some
point, there will be a clash of elections unless the dates are
separated out.
Q91 Lord Crickhowell: Professor Bogdanor,
do you have a view?
Vernon Bogdanor: I agree very much with what
Dr Fox has said. I do not feel as strongly as she does that we
should not have general elections in October, if that is what
the politicians opt for. When general elections have coincided
with local government elections, some people in local government
have welcomed that because it means that turnout for the local
government elections is higher than it would be otherwise.
Q92 Lord Crickhowell: That takes
us very neatly to my next question. The proposal is that the general
election should have a fixed date of the first Thursday in May,
which we would all need to get used to. Is that a good idea? I
have not worked this out, but would an election in May followed
by a summer recess have some practical implications for Government,
given that MPs need to go into a long period of recess before
they come back? What are the pros and cons of having a fixed election
date of the first Thursday in May?
Q93 Vernon Bogdanor: The premise
behind the question, if I may say so, is that the Bill is the
Fixed-term Parliaments Bill, but the title is really a misnomer.
If in a particular Parliament—I admit that this is unlikely—there
is a two-thirds vote in favour of dissolution or a vote of no
confidence, the cycle would be upset unless the Swedish system
is adopted, as in Scotland, whereby such an election is deemed
an extraordinary general election so that the cycle is still maintained.
There is some ambiguity about whether that is what should be achieved.
The title "Fixed-term Parliaments Bill" is a misnomer—I
do not know what would be a good title—for that would mean
that, as in Norway, the Parliament simply could not be dissolved
at any time. As I said, Norway is the only country in Western
Europe that has that.
Q94 The Chairman: An additional question
is whether the Bill is a normal piece of legislation that does
not bind a future Parliament.
Vernon Bogdanor: Indeed. My understanding is
that the legislation could be repealed by a simple majority. I
do not know whether the constitutionalists would agree with that.
Otherwise, one could presumably repeal the legislation in two
stages by first repealing the requirement for the two-thirds majority
for dissolution and then dissolving by simple majority. I cannot
believe that in practice the legislation would necessarily bind
another Parliament.
Q95 Lord Crickhowell: The present
Government have extended the current session until Easter 2012.
Do you have any comment on the constitutional implications of
that?
Ruth Fox: On the sessional arrangements, I am
quite relaxed about that. Scrutiny is needed when there is a tidal
wave of legislation as a result of the pressure of cut-off. As
we do not have a culture of sessional carryover—although
carryover is available to the Government, it has not happened
on the scale anticipated—there is a sense that legislation
is rammed through because of the sessional cut-off. Enabling better
planning and longer-term thinking would be one advantage of having
fixed-term Parliaments, so I have no problem with facilitating
that. Clearly, moving to a five-year timeframe would require some
regularisation of the sessional pattern. Clearly, the first Queen's
Speech is important, but there is an argument to be had about
whether successive Queen's Speeches are an effective tool for
scrutinising the Government's legislative programme, given that
the Government will bring forward legislation that was not in
the Queen's Speech. In addition, we know from our research that
Government will often treat the Queen's Speech simply as a communications
tool to establish a narrative about the Government, with the actual
legislation in the speech being to some extent secondary. Certainly,
in research that we did last year, in which Lord Norton was involved,
we heard tales from special advisers that a Government department
that did not have legislation in the Queen's Speech was called
up and told, "Where is your bill? You must have a bill in
the Queen's Speech". It then had to create a bill. In terms
of good planning, of good approaches to legislation and of improving
the quality of law, I think that there are some advantages to
what the Government have suggested. I would be quite radical and
ask why we need to have a sessional approach. Why do we not take
the approach of, say, Scotland, where the session runs through?
Vernon Bogdanor: If I may, let me say that the
constitution and procedures of Parliament do not belong to any
particular political party or government, and it is not clear
that they should be altered in this way. There is a great contrast
between the constitutional reforms after 1997, which were by no
means the product of consensus in the sense that all parties agreed
with them, but had nevertheless been the product of a long period
of debate and discussion. Partly that was because the Labour Party
had been so long in opposition, but even after 1997 there was
a period of gestation before the proposals reached the statute
book. The one case in which that did not happen was the Constitutional
Reform Bill of 2005, but there were nevertheless many amendments
made to the original provisions precisely because they were criticised
as being knee-jerk proposals. In my judgment—I hope that
I am not making a party-political point here—the procedure
of constitutional reform after 1997 was better thought through
than some of the things that we are seeing today.
The Chairman: Could I just go back to
Dr Fox's point about the extension of the session? Some of the
implications in terms of the House of Lords are the ability to
use the Parliament Act.
Ruth Fox: I accept that. That would need to
be resolved. It goes to Vernon's point about the fact that these
matters do not belong to one political party and the need for
greater consideration. In a critique of the Government from an
administrative point of view, in a position of improving the quality
of law, there are some advantages to the longer session. But I
take the point that, in terms of how these things are developed
and thought-out, there needs to be a more consensual approach.
The fact that the Government announced the changes in the sessional
arrangements much later than when they announced the Bill suggested
an ad hoc and ill thought-out approach to the consequences of
what they had brought forward initially. They had not thought
it through at the beginning and set it all out. If you chart from
the summer the way in which they have brought forward various
announcements on how things have changed about this legislation,
that reflects the fact that it is ad hoc and ill thought-out and
goes to the point that there ought to have been pre-legislative
scrutiny. There ought to have been a much more extended timetable
given the implications and consequences that would arise. Parliament
Act implications would obviously have to come into that.
The Chairman: We have briefly touched
on the safety valve mechanism of early dissolution, but do you
want to pursue that, Lord Pannick?
Q96 Lord Pannick: Can I follow up
on Professor Bogdanor's point that the title of the Bill is a
misnomer? Can I ask you both about the purpose of the two-thirds
provision for early elections? Plainly, if the opposition wish
to secure an early election, they will use a 50 per cent +1 mechanism,
which is easy to achieve. If we believe in fixed-term Parliaments,
and I appreciate that we may not for all the reasons that Professor
Bogdanor has eloquently given, is it really right that the government
should be able to secure an early election when they retain the
confidence of Parliament?
Vernon Bogdanor: The two-thirds provision allows
a government with a landslide majority, such as the National Government
of 1931, to secure an election whenever they like. I cannot see
why a government with a landslide should have that extra privilege.
It seems very peculiar that a normal government, if you call it
that, cannot dissolve when it likes, but the National Government
of 1931 could dissolve when they wished. The argument against
a government dissolving when they wished to do so is that they
can somehow manipulate the economy or choose a favourable moment
when they are doing well in the opinion polls to go to the country
early. As I said in my evidence, that has arguably occurred on
six occasions since the war. On one, in 1970, the Government miscalculated
and lost the election. On the other five occasions it is difficult
to argue that, even if the Government had gone on to the end of
their term, they would have been defeated, though obviously that
is a matter of speculative judgment. In my view, that disadvantage
to dissolving early is outweighed by the serious disadvantages
of a fixed-term Parliament, prevents Prime Ministers leading a
government in an unviable Parliament from going to the country,
and prevents a newly chosen Prime Minister between Parliaments
from going to the country, which prevents a Prime Minister who
has a new policy for which he may seek a mandate from going to
the country. Most importantly of all, because we could be moving
into an era of hung Parliaments, it means that coalitions can
change in the middle of a Parliament without the people being
allowed to pronounce on it. Some criticise the present coalition
because it was not endorsed by the voters in the election. The
voters had no chance to endorse it. The voters might be even more
annoyed if at some time the Liberal Democrats decide to join with
the Labour Party to form a different coalition which, again, the
voters under these proposals would have no chance of endorsing.
In my judgment, the balance of argument is against fixed-term
Parliaments. The disadvantage of our current system is that it
allows Prime Ministers to choose a moment for dissolution, but
the benefits that it gives the Prime Minister are exaggerated
and the disadvantages of fixed-term Parliaments are much greater
than the disadvantages of our current system. I hope that meets
the point that you were seeking to clarify.
The Chairman: We then move on from the
dissolution point to the vote of confidence point.
Q97 Lord Renton of Mount Harry: This
is a totally fascinating conversation. You just said that you
actually prefer not to have fixed-term Parliaments, but something
else. Having been in the Commons for quite a long time, one realises
that it all depends on the Prime Minister and the team around
him, because the strength of feeling at that point is so great.
We come to Clause 2 and the second safety valve. What you think
about that? Is there a danger of it being manipulated by governments
seeking to bring about an early election, as occurred in Germany
in 2005, for instance? How can that be prevented? I doubt that
it can be prevented.
Vernon Bogdanor: I doubt that it can be prevented.
Governments have dissolved early in that way in Germany on three
occasions. In 2005, the Government miscalculated because they
called an early election and lost. On the other two occasions,
it worked and the Government won the election.
Q98 Lord Renton of Mount Harry: You
were quite right in saying that the Labour Government miscalculated
in 1970. They certainly expected to win and didn't.
Vernon Bogdanor: It is difficult to prevent
manipulation, but you can make it less advantageous by adopting
what you might call the Swedish or Scottish model, by which any
election that comes about between terms is an extraordinary general
election and does not affect the timetable. In Sweden, you have
four-year elections. If there is an election between then it does
not affect the cycle, and that is the case in Scotland also. As
I said earlier, the advantage of calling an early election is
much less in a proportional system than in the system that we
have.
The Chairman: Lord Hart, I think you
were concerned about early dissolution.
Q99 Lord Hart of Chilton: Let us
assume that we have a fixed-term Parliament and there is a dissolution.
There will either be a dissolution on a vote of no confidence
or on the two-thirds vote. This question, which you touched on
earlier, relates to what the subsequent term should be. Should
it be the rump of what is left or should we reset the clock and
have another five-year term, or whatever the fixed term is?
Vernon Bogdanor: That depends on what you think
the advantages of fixed-term Parliaments are and your own judgment
of the balance of advantage. If you are sympathetic to fixed-term
Parliaments, you will say that the clock should not be reset.
If, like me, you are not very sympathetic, you would say that
the clock should be reset.
Q100 Lord Goldsmith: I want to press
a little on the 14 days. Professor Bogdanor, you have said something
about this already. There are two extreme situations about what
happens during the 14 days. One is that the government of the
day manage to do a bit more in terms of offers of jobs, promises
or deals on policies and therefore get back to a position where
broadly the same government can come back in and get a no confidence
vote reversed, as it were. That would work under the Act, so we
would not have a dissolution. The other extreme is that that can't
be done, and you have an entirely different grouping—Liberal
Democrats and Labour or whatever it may be—producing an
entirely different coalition that the people have not voted for.
How does that fit within the concept that this is all designed
partly to give more power back to the people?
Vernon Bogdanor: I don't think that it does
fit with that idea. I share Lord Crickhowell's earlier reservations
about the 14-day clause. My understanding is that if the government
are defeated on a vote of confidence they can only be a caretaker
government until they have parliamentary confidence again, if
they secure it, and therefore could not undertake controversial
measures. Of course, it means that for 14 days you do not have
an effective government while parliamentary manoeuvring is going
on to see if some alternative combination is possible. I much
prefer the situation, as in 1979, when James Callaghan was defeated
on a vote of confidence. He immediately said, "We will take
our case to the country and let the country decide". Under
the current situation, it is possible for an alternative government
to be found in those circumstances. That happened in 1924, when
the first MacDonald minority Labour Government were defeated.
The King's private secretary enquired of the other parliamentary
leaders whether they were prepared to form a government and only
when he was told that they weren't was a dissolution granted.
If one of them had been, that alternative would have been perfectly
possible under our present constitution.
Q101 Lord Goldsmith: Thank you. Can
I just pursue the question of what happens in those 14 days? Dr
Fox, you say that during that period the same constitutional convention
should apply as in the run-up to an election. What would you see
happening during that 14 days in terms of government managing
to operate?
Vernon Bogdanor: My understanding of our system
is that if a government has lost the confidence of Parliament,
they can only undertake non-controversial matters. Anything that
has any controversial flavour must be agreed with the opposition.
The Chairman: A purdah requirement.
Vernon Bogdanor: Precisely.
Ruth Fox: I agree that that is the constitutional
convention, but this is where we may rub up against some potential
difficulties vis-a"-vis the constitutional status of the
Cabinet Manual. Chapter 6 of the Cabinet Manual,
which was published in draft form before the election, makes clear
that convention, but there is no reference to that in terms of
what would happen in the event of an early dissolution or this
14-day scenario. In my view, if that is going to be the operational
document in government and Whitehall, the Cabinet Manual
will have to be amended very clearly to that effect. In practice,
yes, the caretaker convention should apply. What would that mean?
The government could not sign large financial contracts or make
major public appointments. In the five-day period after the general
election in May, Alistair Darling went to the ECOFIN meeting about
the Greek economic situation and Lord Adonis consulted the Opposition
about air traffic control problems. There would have to be inter-party
consultation about any decisions that Ministers felt they had
to take in order to manage what was deemed to be essential business.
All non-essential business would effectively be put on hold. It
needs to be clarified in the Cabinet Manual.
Q102 Lord Pannick: Do you think that
the Bill needs to define more precisely what is a vote of no confidence?
For example, does it cover defeat on the Queen's Speech, defeat
on a matter that the government have designated a question of
confidence or do you understand it only to apply to an express
motion of no confidence?
Vernon Bogdanor: I suppose it is always possible
for a government, when defeated on a major issue—the Budget,
for example—to demand a vote of confidence from Parliament.
That is what John Major did in 1993, when defeated, I think, on
the social chapter of the Maastricht Treaty. He then demanded
a vote of no confidence, which he secured. That would always clarify
the position.
The Chairman: A vote of confidence.
Vernon Bogdanor: Yes, a vote of confidence.
Q103 Lord Pannick: Does it cover
a motion of confidence? It says here, a motion of no confidence.
Ruth Fox: That is the difficulty. How do you
define a confidence motion in the sense that there is no formal
definition of it? It depends on political context. It is one of
those things where you know it when you see it. The wording of
the Bill very clearly defines it as no confidence. Therefore,
it is hard to see how the government would bring forward a motion
of no confidence in themselves. I do not know enough procedurally
about whether this would be possible, but a government back-bencher
could bring forward a motion of no confidence in their own government,
but that would seem perverse. The wording of the Bill suggests
that it would come only from the opposition. The danger of the
situation is that if the Queen's Speech, the Budget or the second
reading of a manifesto bill were perceived to be an issue of confidence,
and then a no confidence vote came forward. It would not necessarily
come from the opposition because it might be in their political
interest to maintain the perception of a lame duck government
for an extended period.
Q104 The Chairman: Professor Bogdanor,
do you want to comment on the constructive no confidence arrangements
in Germany?
Vernon Bogdanor: Yes. It seems to me not very
helpful and has been used on two occasions in Germany for purposes
quite different from those imagined by the founding fathers of
the German constitution. The constructive vote of no confidence
provides that you cannot simply have a no confidence vote in the
government, but must propose an alternative Prime Minister. The
purpose of that was to meet the situation that occurred at the
end of the Weimar Republic, particularly after 1930, when governments
were removed by an unholy opposition combination of Nazis and
Communists, who themselves would not get together to form a government.
The notion is somewhat confused, because you either have a two-party
or bipolar situation in a Parliament, in which case the alternative
government is obvious; or you have a multi-party system in which
there is no obvious alternative government. In a multi-party system,
the effect of the constructive vote of no confidence is to allow
a weak government to hobble on when it hasn't got the support
of Parliament. In that situation, I prefer a dissolution of Parliament
to let the people decide what the alternative government should
be. I don't think that the idea of a constructive vote of no confidence
has as much value in Germany as the founding fathers would have
hoped, and I don't think it would have much value here either.
Q105 Lord Shaw of Northstead: In
the Professor's report, at paragraph 27, he says that the Fixed-term
Parliaments Bill, "indicates a conflict between two fundamental
principles, the principle of parliamentary government and the
principle of democratic government. The former principle provides
that parliament shall choose the government, the second that the
people should choose the government". I take issue on the
subject of the election of the Prime Minister. I can see the point
of going to the country if it is a realignment of a multi-party
government, but that is very different from a change of leader.
Surely it is right that the people elect Members of Parliament
to govern and the party there chooses its own leader. That should
be paramount. You should not have to go to the country every time
you want to change a leader. Is that not a clear distinction and
should it not be drawn in the Bill itself?
Vernon Bogdanor: Your question reflects the
constitutional practice until now. That is of course correct.
But as I said earlier, there was some feeling in the country—opinion
polls suggested that it was not a majority feeling—that
Gordon Brown ought to go to the country in 2007, having become
leader. That was not felt on previous occasions when, for example,
John Major succeeded Margaret Thatcher or James Callaghan succeeded
Harold Wilson. It may be that opinion in the country is changing
because people feel that we are moving towards a presidential
system and that we are voting not for a Labour, Liberal Democrat
or Conservative government but for David Cameron, Nick Clegg or
Ed Miliband for Prime Minister. This is a difficult matter to
resolve, because the mood may be changing. On the broader point,
at every general election since the war except this one and February
1974, the people have voted for a government and Prime Minister.
In 2005, they voted for a Labour government led by Tony Blair
rather than a Conservative government led by Michael Howard. It
is difficult to say the same about the election of 2010. Were
you to have a change of coalition partners it may be even more
difficult to say that. There is a difference between a general
election that does not yield a majority for a single party and
a general election that does yield such a majority.
Q106 Lord Shaw of Northstead: But
that is not clear in the Bill.
Vernon Bogdanor: No, indeed.
The Chairman: Lord Norton, would you
like to ask about the constitutional Monarchy and the question
of the prerogative?
Q107 Lord Norton of Louth: This is
really on the power of prorogation, because there is nothing in
the Bill. There was the incident in Canada, where prorogation
was used to prevent a vote of no confidence occurring. We have
been told that that was a one-off and we should not worry about
it, but should we worry about it?
Ruth Fox: I don't think you need worry about
it in the context of the current Monarch, but you can't know the
views of future Monarchs in a scenario 40 or 50 years down the
line. It is something that could be addressed. The fear is that
you have a no confidence motion and then you have these 14 days.
I have issues about where the 14 days came from. I haven't seen
anything from the Government that explains exactly how they came
up with 14 days, but there we are. In the 14-day period, you have
the opportunity for a government to try to be formed and then
there would have to be another confidence motion in that government.
It seems to me that you could put in the Bill a restraining power
to the effect that if a no confidence motion has been approved,
in that 14-day scenario that prerogative power could not be applied.
You could not use it, so the Monarch would not have the discretionary
power to take up the request from the Prime Minister to prorogue.
It would not be on the table.
Q108 Lord Norton of Louth: The problem
would not necessarily be who the Monarch was, but who the Prime
Minister was.
Ruth Fox: Indeed. A combination of both, potentially.
Vernon Bogdanor: In the circumstances outlined
by Lord Norton, a wise constitutional Monarch would wait, if asked
for prorogation. A wise constitutional monarch would say, "My
Prime Minister has the authority to advise me or to ask for a
prorogation as long as he has the support of Parliament, but not
otherwise".
The Chairman: Does that answer the point
that you wanted to make Lord Norton? Was there an additional question
on the House of Lords?
Q109 Lord Norton of Louth: Separate
from that, do you envisage a role for the House of Lords in any
parliamentary fixed term or, for that matter, any early dissolution
arrangements?
Vernon Bogdanor: The Wakeham Royal Commission,
if I remember rightly, was against any such role for the House
of Lords. I'm not sure that it was correct about that. The House
of Lords already has a constitutional role in preventing the Commons
from extending its own life. The Parliament Acts do not apply
in relation to such a provision. There might well be one or two
other fundamental constitutional provisions that you should not
allow a majority in the House of Commons to override. That obviously
raises large questions because the matters in this Bill might
not be the only ones. It seems to be a matter for further consideration
whether we need stronger constitutional protection than we have
on matters other than extending the life of the House of Commons.
Lord Norton of Louth: Presumably, the
only role the House would have if this were passed would be an
attempt by a future government to amend the legislation. Obviously,
the Lords would have a role in the normal legislative process,
but that would be it.
The Chairman: In the substantive questions
that the Committee indicated that it wanted to talk to you both
about, we have probably covered most of the ground. Do other members
of the Committee have points that they feel have not been addressed?
Q110 Lord Norton of Louth: I just
want to pick up on a point that Professor Bogdanor made in his
submission, because it raised an interesting spectre. In paragraph
5, you say at the end: "It is, however, not clear whether
the two-thirds provision can bind a future parliament such that
if a majority smaller than two-thirds in a future parliament were
to vote for dissolution and the Prime Minister then asked for
one, the Queen would be entitled to refuse it". That is an
issue for constitutional lawyers but it strikes me as quite a
profound issue because you can see what would happen in those
circumstances if someone sought to challenge that. Would you like
to expand on that?
Vernon Bogdanor: Constitutional lawyers have
argued for many years on whether Parliament can bind itself, without
reaching any conclusion. I am far too careful. It would be like
a bull in a china shop to tread in an area which constitutional
lawyers have debated in such a sophisticated manner for so many
years without reaching a conclusion. One has to call it a grey
area of our constitution—whether Parliament can bind itself
by a special majority. It has not happened before.
Q111 Lord Crickhowell: I want to
go back to the extension of the session, and something that Dr
Fox said about departments being asked to produce bills because
they hadn't. I sat for quite a long time under Willie Whitelaw
on the Legislation Committee. It was very important, particularly
as many of us feel that there is too much legislation. But the
pressure there was quite the reverse. It was extremely difficult
to come forward with a bill because there were a limited number
of bills that you could get into a session. That was rather an
important factor. There was another feature, too. Am I not right
in thinking that by extending the session, the pressure that this
House particularly has towards the end of a session to get legislation
altered is removed for quite a lot of bills? Governments have
to stop and think towards the end of a session. Amendments get
carried by this House that probably would not otherwise get carried.
It seems to me that there are some quite significant consequences
from this change and I am not at all sure that they have been
thought through adequately. Any further comment?
Ruth Fox: I agree. It goes to the heart of the
problem with the legislation, the way that it is being pushed
through and the timetabling. An awful lot more time and detailed
consideration could have been given to it. I said at the beginning
that I think there is a missed opportunity in this Bill in thinking
through the nature of the term. So much of the focus of the Bill
is on the end of the term—the date of the end of the term
and the emergency valve for dissolution. One of the core advantages
of having a term is that you can plan and have a longer-term approach.
You also need to think about issues right from the beginning of
the term. One issue we have not mentioned is that the dissolution
power is a prerogative power, but the Bill does not address the
summoning power for the date of the first meeting of the Parliament.
You then have issues from that point of how you plan a legislative
programme through the various years of that five-year term. It
would, in my view, remove the need for wash-up at the end of a
Parliament. Obviously, in the event of an early dissolution it
wouldn't and things would be pretty much as now, looking at the
1979 scenario for example, but in my view it would remove the
need for wash-up. I take your point about there being pressure
to get bills into the Queen's Speech from Departments and Ministers.
It depends. In Robin Cook's memoirs, he talks about when he became
Leader of the House; he looked in the legislative cupboard and
it was bare. They very quickly had to come up with legislation.
It depends from government to government and on the political
context. The reality is there is too much legislation. It is a
tidal wave approach. I think it is unavoidable, whatever parliamentary
arrangements you have, that at the beginning of the term you are
going to have a lighter legislative workload because parliamentary
counsel have to have time to draft legislation properly. The beginning
of the term is going to be quite light, but inevitably the middle
and the end of the session or Parliament are going to be heavier.
It seems to me that if you have some sense of when the end date
is, business managers through the usual channels should be required
to work backwards from that in planning the legislative programme,
either across the term or across the sessions. It should be possible
to avoid some of the problems of the tidal wave, banging up against
the deadlines and the fact that whole sections of bills go through
with very limited scrutiny. If the public were aware of some of
the bills that go through and the amounts of money that are voted
on with limited—or sometimes even no—scrutiny, they
would be appalled.
Lord Rodgers of Quarry Bank: Are we moving
towards an end?
The Chairman: We are, but both you and
Lord Renton wanted to make comments.
Q112 Lord Renton of Mount Harry:
If I could speak about the wash-up, as an ex-Chief Whip, you have
to think of realism rather than totally of idealism. The whole
point of the wash-up is to do deals with the other side that enable
you to get through bills that would not otherwise get through.
It is a remarkable occasion, because suddenly the Whips who were
arguing with each other are working together to make certain that
bills get through. I don't think you can avoid that element in
the running of the House of Commons. It will always be there,
because bills will take longer than expected. There are events
happening that demand debate which had not been thought about
and therefore timetables get, not lost, but very, very squeezed.
It is out of that that the wash-up happens. In a way, it is a
very good example of parties who are opposing each other working
together to get legislation through at the last time. I am not
saying it is all properly argued through. The general view is
that when an MP turns up and says to the Whip, "What's this
all about?" the Whip says, "Don't bother about that;
just get into the Yes Lobby." That's life, and I suspect
it will go on. It is another element.
Ruth Fox: I accept that there may be instances
where some of it may go on because of events arising. You might
need legislation that you had not anticipated earlier in the Parliament,
or whatever, but we should look at the wash-up at the end of the
last Parliament, in March/April. I submitted with our written
evidence an article that I and colleague, Matt Korris, had written
for Parliamentary Affairs on a quick analysis of the wash-up.
I took a fairly pragmatic view on the pros and cons of it, but
I don't think in a fixed term you should ever end up in that situation,
as the last Parliament did, with bills such as the Constitutional
Reform and Governance Bill and the Digital Economy Bill. There
may be instances on the margins where, at the end of the fixed
term, there is some pressure and it is not as ideal a situation
as you would like, but a fixed-term should eradicate those examples
where the government was really stretching the bounds of acceptability,
if I can put it politely.
Lord Norton of Louth: I should have declared
an interest at the beginning as Director of Studies for the Hansard
Society.
The Chairman: Thank you for doing so.
Thank you both very much. You have been very generous with your
time and this has been a very valuable session. Lord Rodgers would
like to make one final point.
Q113 Lord Rodgers of Quarry Bank:
We have discussed this very fully. I have already asked about
a summary of the balance of merit for a fixed-term Parliament.
Could I ask both of you, what is the difference, if any, between
a first-past-the-post Parliament, which we have now, and AV, if
we find that we have AV or some other form of PR?
Vernon Bogdanor: The alternative vote makes
a hung Parliament slightly more likely. At the last election,
according to various calculations, it would have given the Liberal
Democrats about 20 more seats, primarily at the expense of the
Conservatives. So in that sort of situation, a hung Parliament
would be more likely.
Lord Rodgers of Quarry Bank: I was really
asking for your judgment on the merits of a fixed-term Parliament
against those two prospects.
Vernon Bogdanor: If you are moving into an era
of hung Parliaments, the issue of fixed-term Parliaments arises
for this reason. On the continent, which does not have the alternative
vote, but proportional representation, the aim is to persuade
or even force the political parties to work together in the way
that Lord Renton was describing sometimes occurred in the wash-up
period. That is the purpose of the fixed-term Parliament, to alter
the culture of Britain from its current, fairly adversarial culture,
if I can put it like that, to a more consensual culture. Countries
such as Germany and Norway operate in practice in terms of grand
coalitions. Even if they don't have formal grand coalitions, you
often have the consent of the opposition for legislation, which
obviously is rarely the case here. Your question about the alternative
vote raises a very important general point that, if we are moving
into a period of hung Parliaments, there is a large issue that
perhaps this Committee might consider of how our constitution
might need to change. I repeat that I think this Bill is not very
well thought out. In my judgment, this session has revealed two
very important ambiguities in it. One was pointed out by Lord
Norton, on whether Parliament can bind itself. The second, pointed
out by Lord Hart, was whether the intention is to have an extraordinary
general election if you dissolve early, as in Scotland or Sweden,
or not. It seems to me that these issues are not yet clarified
in the Bill, and perhaps not in the Government's mind either.
I think they need to be clarified.
Ruth Fox: I don't think I would add anything
to that other than to go back to my earlier comments that there
is a looming difficulty in terms of the relationship between politicians
and the public, and understanding and knowledge of how our political
system operates, which is seen partly in the issue about voting
on the identity of the Prime Minister. In the context of where
we are, whether it is under first past the post or AV, as Vernon
has indicated, we are moving into a scenario where hung Parliaments
are more likely. We are going to have a clash between the perception
that we ought to have a more presidential system, and therefore
our constitutional and political arrangements should reflect that,
alongside a culture of hung Parliaments, which does not facilitate
that. It seems to me that there is a potential major political
problem looming on public understanding and engagement around
those issues. I simply make a plea that one area that needs to
be addressed, and has not been addressed sufficiently yet, is
public understanding and education about these issues—political
literacy and so on, which the Hansard Society is very much an
exponent of.
The Chairman: Thank you both again. You
have been enormously helpful and this has been a very valuable
session. I am really grateful to you and thank you, too, for highlighting
the ambiguities, as Professor Bogdanor has just expressed them,
within the Bill, not least, as I understand it from what you have
both said, about the title of the Bill, which is a fairly basic
point. I am very grateful indeed for your time and for the written
evidence that you have sent to us. Thank you very much indeed
for coming.
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