Parliamentary Voting System and Constituencies Bill
Bernard Jenkin Excerpts(13 years, 9 months ago)
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Mr Harper
I am not going to give way.
The key arguments against the threshold remain as compelling as ever. I have addressed some of the points made by their lordships during their debate today. Although they are entitled to ask us to consider the matter again, I do not believe that the points they raised change the balance of argument.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
Does my hon. Friend not recognise that there is a difference between an ordinary election and constitutional change? A common feature of many constitutions is having thresholds for constitutional change. Just because we have an unwritten constitution, that does not mean that we are absolved of any responsibility to show that there is a reasonable threshold for constitutional change. If there were only a 10% turnout in London, where there are no forthcoming local elections, would that really constitute a valid result?
Mr Harper
I have two points to make. First, on my hon. Friend’s last point, we are talking about a national referendum and the important thing is to get people to vote across the whole of the United Kingdom. Secondly, we do not have a tradition in this country of thresholds for referendums either. Ten referendums have been held and only in the devolution referendum in the 1970s was a threshold inserted—the rest of the referendums had no such provision. He is being too pessimistic, because people will engage with this question. However, it would be wrong to thwart a clear decision—a yes vote—on the basis of the sort of mathematical formula that I have just set out. It could have quite perverse results and give an incentive for people to stay at home.
Mr Cash
I entirely endorse the final remarks of the hon. Member for Rhondda (Chris Bryant)—the Government amendment in lieu is a load of rubbish.
It is important to get across what is really going on here. In the context of the referendum, the Conservative party is being led like a lamb to the slaughter. The reality is that the referendum is entirely to do with Liberal party aspirations as expressed in the coalition agreement. I have here an extract from the right hon. Member for Deauville—[Laughter.] I meant the right hon. Member for Yeovil (Mr Laws), who might as well have come from Deauville. He quotes the Secretary of State for Energy and Climate Change, the right hon. Member for Eastleigh (Chris Huhne), as saying:
“Our historic mission is to create a British Liberal party whose influence will be embedded in our politics through a reformed voting system – a Liberal party capable of dealing with both other parties.”
The reality, therefore, is that what lies at the heart of this debate is not the rubbish that we have heard from the Minister on the Electoral Commission, but the glue that holds the coalition together.
I pay tribute to the noble Lord Rooker and the other Lords and Ladies who made such magnificent speeches this morning, which I had the privilege to witness. They are right that the Bill provides for a binding referendum, and that the essence of the argument is that the Bill is a constitutional issue, because it proposes to change our constitution in a fundamental way for the first time.
I believe that 40% is a reasonable test. It is accepted by all the constitutional authorities—including, ironically, Vernon Bogdanor, who was the Prime Minister’s own tutor. This threshold of 40%, which has come down to us in an amendment from the House of Lords, is reasonable and fair with respect to the electorate as a whole. We are being asked to reject that provision. I am no longer going down the route of my original proposal, which one of their Lordships referred to as “the fatal amendment”. I propose, for all the reasons that have been so ably put forward this evening, to follow what the House of Lords said.
There is no reference to thresholds in this coalition agreement—none whatever. None of the political parties expressed any genuine manifesto commitment to the alternative vote and no commitment whatever to the threshold. Given that the Bill purports to provide for a fair electoral system with preference votes, one would have thought that its proponents would at least have the decency and common sense to give the electorate a fair deal—[Interruption.] Yes, and the courage, as one of my hon. Friends says. I thought that the Liberal Democrats believed in fairness and constitutional propriety, but I was mightily mistaken.
Mr Jenkin
Can we dispense with this argument that any kind of threshold somehow provides an incentive for the no campaign to campaign for people to stay at home? The truth is that this is simply a test of whether there are enough people motivated in favour of change to justify it. If enough people are not prepared to vote for change, why should it take place? That seems to me to provide the reason why a threshold should exist for every referendum. Incidentally, when the Conservatives were in opposition, we voted for a threshold in every referendum.
Mr Cash
I agree with my hon. Friend and point out that no European country other than France does not have a threshold. Over the generations, we in this House have always regarded constitutional matters as of such fundamental importance as to require a free vote and to rule out the sort of programming and guillotining that we are seeing here. Yesterday, I had a mere two minutes in which to express the arguments on my amendment.
I heartily dislike this Bill and I believe that its effect will be exceedingly damaging to the Conservative party and exceedingly damaging to our national interest. I strongly urge my hon. Friends to vote for the threshold arrangements proposed by the noble Lords. I believe that doing so would be in the interests of the Conservative party, its individual members and its councillors who are soon coming up for local elections, as well as in the national interest of the electorate as a whole.
Other Members wish to speak, so I shall bring my remarks immediately to an end. The Government should be careful about what they wish for because it might come true.
Parliamentary Voting System and Constituencies Bill
Bernard Jenkin Excerpts(13 years, 9 months ago)
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Chris Bryant
My right hon. Friend is absolutely right. In addition, there are some specific concerns. For example, it is possible that, as a result of the boundary changes, we would end up with no single constituency in Wales with a Welsh-speaking majority. That is not of particular concern to my constituents in the Rhondda, but it is of concern to the British Parliament that that voice could be lost.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
One of the reasons for my losing faith in the old system of public inquiries is that, for all the arguments that the Conservative party presented for a fairer distribution of constituencies, we finished up with a manifestly unfair distribution. We need a speedier system, which can use fresher and more up-to-date data to deliver a fairer distribution of constituencies. That should happen.
Chris Bryant
It might be that the Conservative party lost because it did not advance good arguments, which goes back to my earlier point.
Ian Lucas
Absolutely; my hon. Friend makes a powerful point about Northern Ireland, and I can speak for my constituency in Wales. The Bill will have profound implications for communities across the United Kingdom. In due course, the Boundary Commission will reveal the proposals and people will see what they are. Only at that stage will people will realise the true horror of the Government’s proposals. They represent the antithesis of any form of localism, and they will take away responsibility from local communities.
The dripping sanctimony that we used to hear from Liberal Democrats and Conservatives about localism is in marked contrast to their appalling unreadiness to listen to any arguments about the Bill. They should be deeply ashamed of this legislation. All legislation should be made for the long term, and should carry as much cross-party consensus as possible. Members who support the Bill will have to explain to their constituents why they will no longer have the right to make oral representations on any proposed changes to their local constituency. Those Members will rue the day that they voted for this legislation.
Mr Jenkin
I agree with my hon. Friend the Member for Broxbourne (Mr Walker) that this whole matter is being rushed. If there is one thing that should not be rushed, it is the prospect of constitutional change. The pressure of time on our proceedings on the Bill arises solely from the Government’s desire to achieve the date of 5 May for the referendum. That date is cemented into the bit of the coalition agreement that was not published, and it exists purely for political purposes. This is a purely political device, perhaps to try to get a yes vote, or to try to boost the Liberal Democrat turnout at the local elections being held on the same day. Let me be absolutely blunt: there will be barely 11 weeks between the Bill receiving Royal Assent and the referendum, even though the Political Parties, Elections and Referendums Act 2000 stipulates that there should be a period of six months in which to prepare for a referendum.
This referendum is being indecently rushed. Unfortunately, Lords amendment 2, which proposes that the date should be changed, does not do the trick. It does not require the date to be changed. I do not know whether the Government intend to accept that amendment, but it would have no practical effect. The House of Lords has made clear its discomfort with the fact that the referendum was to be held on the same date as the local elections and the Assembly elections. I will not detain the House on that Lords amendment if there is no Division, but I wish to draw attention to the fact that this is a shoddy way to conduct a referendum. It is unconstitutional, it is political—deeply political—and it is not an objective way to address this issue. It will undermine the value of any referendum result, and I shall certainly support a later Lords amendment to address the problem.
Mr Harper
Let me make a little more progress. I am conscious that other Members want to contribute and I have been generous in giving way.
As drafted, the Bill that left this House offered simplicity and, above all, certainty—the certainty that every vote would count and not be distorted by an artificial barrier. When people go to the polls on 5 May, we should listen to what they have to say, whatever their view. As well as the issues of principle that I have outlined, there are also some technical and practical deficiencies. Before I go on to them, I will take an intervention from my hon. Friend the Member for Harwich and North Essex (Mr Jenkin).
Mr Jenkin
I echo the point made by the right hon. Member for Blackburn (Mr Straw) that the amendment only requires the House of Commons to think about a poor turnout and how to respond to the result under such circumstances rather than automatically triggering a small yes vote with a low turnout and a new voting system. Does the Minister not recognise the irony of his position? Here we are looking at a referendum that might introduce a new voting system under which a Member elected to this House will be required to get 50% of the votes cast, yet we cannot even put in a threshold to require a 40% turnout to give credibility to the result of a referendum. What serious constitution around the world does not have some form of threshold and why should we not introduce one in this case?
Mr Deputy Speaker (Mr Lindsay Hoyle)
Let me be quite honest: a number of Members are still seeking to catch my eye, so we need shorter interventions.
Fixed-term Parliaments Bill
Bernard Jenkin Excerpts(13 years, 10 months ago)
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Jacob Rees-Mogg
I think that I am defending just as much the interests of the socialists of Great Grimsby and other places, because it is not in the interest of the voters of Great Grimsby to have Governments who come in and play fast and loose with the constitution; that is a really bad idea. The hon. Gentleman has been a most distinguished advocate of less European intrusion in our affairs. [Hon. Members: “Hear, hear!”] As is obvious, he has the respect of the whole House for that, but Governments have been able to play fast and loose with our constitution in a European context because there has been no check from the upper House, and because anything, ultimately, can be jammed through under the Parliament Act 1911.
With this Bill, I want to begin to say—I have proposed the same change to the European Union Bill before the House—that such important constitutional changes need much deeper and broader support than that of some, to use the late Sir Robin Day’s term, “here today, gone tomorrow” politicians. We need constitutional change that is in the historic continuum of our great nation.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
It seems to me that my hon. Friend is very ably saying that the Government cannot have it both ways. Either they believe in a Fixed-term Parliaments Bill that requires future Governments to fix their parliamentary terms, and should therefore accept the new clause and remove the room for manoeuvre, or this is just a Bill of political convenience, they do not want fixed-term Parliaments and intend to retain the flexibility.
Jacob Rees-Mogg
I am enormously grateful to my hon. Friend for putting pithily in one intervention what it has taken me, I fear, 20 minutes to say. He is absolutely right that Her Majesty’s Government cannot have it both ways. Either the Bill is serious and important, in which case it should be exempt from the Parliament Act 1911, or it is simply the contract for a marriage of convenience and so should fall at the next general election.
Mr Cash
That does not surprise me very much.
One thing that I objected to in clause 2 was the reference to “the number of seats”. We are elected as Members of Parliament, and I am not sure that “seats” are recognised in our constitutional arrangements. Seats do not speak, and vacant seats speak even less. I find the whole proposal utterly incomprehensible. As we well know, the present arrangement—not only in this legislature but in that of the United States and, I would say, all respectable legislatures—is that decisions are taken by a majority of one. So what is this new-fangled idea about a two-thirds majority? It is being introduced for one purpose only: to keep the provisions in the Bill going in perpetuity. That is why I take such exception to the use of the plural in the title “Fixed-term Parliaments Bill”.
This provision also involves an invasion of the principle that one Parliament cannot bind its successor. That is what I really object to, as that principle is central to our democratic process. The people who come in to any given Parliament are not the same as the previous people, and they are certainly not seats or vacant seats. I hope that other Members will agree that this is a very important constitutional question, on which I place a great deal of emphasis, in relation to the new clause that we are discussing.
Mr Cash
I do not deny for a minute that that is one of the consequences, but if we were to carry this new clause, it would effectively be the end of the Bill. As I look around the House and see the huge number of people attending this debate, I do not believe that there is the slightest chance of my winning the Division—
Chris Bryant
I warmly congratulate the hon. Member for North East Somerset (Jacob Rees-Mogg) on his amendment and the hon. Member for Stone (Mr Cash) on his amendment, which I shall address in a few moments. I should, of course, have called them “new clauses”; Mr Speaker corrected the hon. Member for Stone on that earlier. However, I think that the hon. Member for North East Somerset rather misled the House. He did not do so in any dishonourable way, but he suggested that he was not here in 1911. I do not believe that any Member of this House believes that he was not here then or, for that matter, in 1832 and 1641. If it was not exactly him, on each of those occasions it was certainly his predecessor who made almost identical speeches. So I congratulate him on his consistency, which has lasted not only for the length of a Lib Dem manifesto, but through the centuries, and I am sure he will be here for many generations to come.
Mr Jenkin
The hon. Gentleman rightly points out that someone just like my hon. Friend the Member for North East Somerset was doubtless here in 1911, just as there was probably someone just like the hon. Gentleman and someone just like me. This House represents a continuity in this great kingdom of ours. He adverts to it with regard to only one Member, but it applies to all of us.
Chris Bryant
I am not sure that that is right because, for example, there were no women in this House or in the other House for many centuries. So changes have taken place, and change is just as important as continuity—that was going to be my argument.
The hon. Member for North East Somerset praised the House of Lords and the job of work it is doing at the moment down the other end of the building, where I hope his father will be stoutly defending not the Government but the cause of freedom and democracy—I am sure he will be. I wish to sound a slight note of caution to the hon. Gentleman. I have long supported an elected second Chamber, but over the past few years the Second Chamber has become far more partisan, because a higher proportion of its Members now take a party Whip. That applies in all parts of that House. [Interruption.] The Minister says from a sedentary position that Labour Members do, but what I said is true of all political parties in the House of Lords. I hope that there will be an elected second Chamber, and if there is the relationship between the Chambers will have to be written down in statute. Otherwise, either there will be permanent gridlock or, even more dangerously, we will face the problem of the Government having absolutely no check on them because they will enjoy a majority in this House and down the other end of the building. I can think of no other system in the world containing no such check. I say to the hon. Member for North East Somerset that although one praises the House of Lords, where Labour and Cross-Bench peers are doing a good job of scrutiny, some dangers are coming down the road.
The hon. Member for North East Somerset also relied on the Salisbury convention, whereby the Lords would not stand in the way of something adumbrated in a general election manifesto on which a Government were elected. In the previous Parliament the Liberal Democrats said that they believed that the Salisbury convention no longer held. I suspect that a convention written in a gentlemen’s club and redrafted several times during the 20th century probably will not stand the test of time and we will need something rather more secure for our constitutional settlement.
As the hon. Gentleman pointed out, the Bill extends Parliament’s life beyond the five-year period that, thus far, has been allowed; clause 1 allows the Prime Minister to extend or shorten the five-year fixed term by two months, although that is reliant on motions in this House and in the second Chamber. That is one of the many reasons we have argued that the Bill will lead to fewer general elections. That is so particularly because the Bill provides for a five-year term, rather than a four-year term, as the hon. Member for Stone said, but also because of the special provision allowing for the extra extension of two months. We believe that that is a problem and that the voters of this country probably want us not to have the longest fixed-term Parliaments in the world. If we are to have fixed-term Parliaments, voters would probably prefer us to adopt the policy of the Liberal Democrats before the general election and the policy that Labour has pursued ever since the Plant commission, when we were mired deep in opposition many years ago, which is for four-year fixed-term Parliaments. Unfortunately, that is not available to us in the Bill.
Chris Bryant
I was thinking of jiggery-pokery. Section 2 is being proceeded with not on the basis of consensus across the House, but on the basis solely of an agreement between the two coalition partners, so it would seem to us to make sense to make an allowance in the Bill that the section would die at the next general election. I note that the hon. Gentleman has crafted his new clause carefully so that it does not say 2015; it simply says that section 2 expires when the Parliament that was elected in 2010 comes to its end. At that point, whatever new Government had been elected could choose whether to continue with the provisions or to let them lapse. If it were a Labour Government, I am pretty confident that we would want to ensure that the provisions lapsed. However, what other parties may want to do is for others to determine.
The key point is that we would not want to have to introduce primary legislation to repeal this element of the Bill. For those reasons I am keen to support the hon. Member for Stone. I do not think his new clause quite throws the whole of the ship into the whirlpool, but I think that the throwing of a few sailors into the mouths of the demon in North East Somerset would be inappropriate, and consequently we shall support new clause 5 but not new clause 3. I very much hope that we shall be able to divide the House on this matter.
Mr Jenkin
I survived, but I have to say that it is a very disappointing whirlpool, and that is no reflection on either my hon. Friend the Member for Stone (Mr Cash) or my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg)—whichever was representing the whirlpool or the many-headed monster. However, if this is an opportunity to put some instability in the Bill, I will certainly support new clause 5 tabled by my hon. Friend the Member for Stone. I have my name on it in any case.
I would echo the sentiment that the hon. Member for Rhondda (Chris Bryant) expressed in an interesting speech in response to new clause 3. The question of constitutional Bills is an interesting innovation introduced by Lord Justice Laws, but I would tell my hon. Friend the Member for North East Somerset that Lord Justice Laws was merely including in his judgments something that had been widely understood by constitutional theorists for some time, although it had never been legally expressed in such terms. I entirely agree with my hon. Friend’s sentiment and, indeed, with that of the hon. Member for Rhondda that Parliament should determine which of these laws is constitutional and overrides subsequent Acts of Parliament. Clearly, the European Communities Act 1972 was expressly intended to do that, as has been recognised by the courts, and the 1689 Bill of Rights does that, but Lord Phillips concluded in a recent case that the doctrine of implied repeal applies to the 1689 Act.
Mr Cash
We are, in fact, moving into very difficult and choppy waters. With respect to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), I do not believe in the so-called constitutional statutes at all. They are an invention in the first instance by Lord Justice Laws. They have a certain spurious credibility, but it does not stack up. My concern is that we will need to use a range of “notwithstanding” arrangements in relation not only to the European Union but to the so-called constitutional enactments or Bills when we want to legislate in the House. We will also need to require the judiciary to give effect to the latest Westminster enactment in that field of endeavour and to state expressly what is intended to bypass this attempt to establish a completely new regime of codified legislation. That will simply become very difficult.
Mr Jenkin
That was the purpose of my referring to Lord Phillips’s recent obiter dicta, in which he implied that later Acts of Parliament can effectively repeal the parts of the 1689 Act that protect Parliament’s privileges. I do not think that that is satisfactory, and Parliament needs to think clearly about how we remain in democratic control of this country’s constitutional settlement.
Using legislative techniques, such as those suggested by my hon. Friend, is the direction in which we ought to move. Some people will say that means moving towards a written constitution, but that is to misunderstand our constitution. It is partly written and partly not written. The point is to determine who is in charge. Parliament should be in charge, with the necessary checks and balances between the two Houses. So I very much welcome the debate that my hon. Friend the Member for North East Somerset has initiated on this topic. This debate will run and run, even though we might not be able to agree or divide on his new clause.
I put my name to new clause 5, tabled by my hon. Friend the Member for Stone, partly because it provides an opportunity to remind ourselves of how bad the Bill is. I am afraid that I am appalled that it was introduced in this way. I cannot recall any Government ever introducing a Bill to manipulate the constitution for their own purposes in such a nakedly self-interested way. Clause 2 is simply a fig leaf to ameliorate the problems that arise from fixed-term Parliaments.
Let us remind ourselves of the provisions of clause 2. The two-thirds provision is obviously open to manipulation—assuming that the mechanism does not drag us into disputes with the courts—because if the Government of the day tabled a motion of no confidence in themselves, it would hardly be likely that the Opposition would oppose it, so a general election would still be available at the initiative of the Executive. In a coalition arrangement, the smaller partner might decide not to take part in such a process, meaning that the motion would be opposed and, by arrangement with the Opposition, perhaps passed by only a simple majority. Under the Bill, we are therefore creating arrangements by which a junior coalition partner may switch horses halfway through a Parliament.
I believe that the Liberal Democrats wanted a fixed-term Parliament so that they could swap coalition partners halfway through the Parliament. Lo and behold, we now read in the papers that the Leader of the Opposition and the Deputy Prime Minister seem to be striking up a new friendship—perhaps that heralds the switch. Of course, I am talking hypothetically—the subject is theoretical—but, constitutionally, the possibility exists. It is extraordinary that we are contemplating putting in place arrangements that could bring about a change of Government, Prime Minister and Administration without a general election, but that is what the Bill provides for. The hon. Member for Rhondda (Chris Bryant) seems to be looking at me quizzically.
Chris Bryant
I am looking at the hon. Gentleman quizzically, because, under the existing arrangements, there have been many changes of Prime Minister and Administration without a general election. Although I recognise that the hon. Gentleman stood at the general election on a manifesto that said that a change of Prime Minister should be followed by a general election within six months, I note that he has not tabled an amendment that would have that effect.
Mr Jenkin
Privately, I can confide to the House that I always thought that that proposition was a bit daft—it seemed like ingratiation. Whenever the ruling party changes its leader, meaning that there is a change of Prime Minister, the Opposition always cough and splutter loudly, and express the view that, in all justice, there should be a general election. The newspapers usually join in the fun, because they like general elections, too, but, in reality, we all know that there is absolutely no need for an election. There is usually a degree of continuity when there is a change of party leader because the same party is in charge and it is unlikely that a lot of the predecessor’s policies would be overthrown. One or two things usually change, but generally there is continuity.
We are considering, however, the possibility of a change of Administration involving a different party. We know that the Labour party attempted to form some kind of rainbow coalition with the Liberal Democrats after the last election—[Interruption.] That was what we were told, anyway. Later in this Parliament—perhaps if the balance of power has shifted a bit towards the Opposition following by-elections—the Liberal Democrats could abandon the Conservatives in a vote of no confidence. In such circumstances, the Conservatives might be clever enough to join in that vote of no confidence to ensure that there would be a general election, but it would be far more likely that the vote would be followed by a reordering of the Executive, which might well involve the Labour party and the Liberal Democrats.
Let us suppose that the maths in the House were slightly different and the two main parties were more evenly balanced. The Liberal Democrats then could genuinely choose which partner they wanted. Through the Bill, we are creating constitutional circumstances under which the third party could change the Government at will without a general election.
Chris Bryant
I am slightly flummoxed by the hon. Gentleman’s charming naivety about what might have happened after the general election. The Bill does many things that are inappropriate, but I do not think it does that, and the truth of the matter is that there have been many changes of Administration over the centuries under the existing arrangements, not least in the first and second world wars. Having a fixed-term Parliament does not in itself mean what the hon. Gentleman has described will happen. It is perfectly possible that we will win a significant number of by-elections over the coming years, or that some Liberal Democrats or others may change their party affiliation, and—[Interruption.] It is possible; I said only that. The Minister should do the nice bit again. In such circumstances, the mathematics would change.
Mr Jenkin
Inevitably, these debates always depend on speculation about what might happen, which is the one rather unsatisfactory thing about debating the future of the constitution. I have always been regarded as a bit of a pessimist about the European Union, but I did point out to a colleague that, so far, I have been proved right, and if these arrangements remain the same indefinitely, sooner or later I will be proved right again.
The point is that the Bill—except for this new measure in clause 2—is intended to remove the safety valve that allows for an early general election. However, that clause is the worst part of the Bill. As we were told by the Clerk of the House in his memorandum, before the Bill was considered in Committee:
“The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates.”
The procedures of the House, votes of confidence, Speaker’s certificates and two-thirds majorities all become potentially justiciable, notwithstanding the Bill of Rights. For that reason, I fully support the new clause tabled by my hon. Friend the Member for Stone.
A vain attempt to remove the courts from considering those matters is made in clause 2(3), which states:
“A certificate under this section is conclusive for all purposes.”
Unfortunately, clause 2(3) is itself justiciable by the courts, because we are putting this into statute. That part of the Bill, which attempts to ameliorate the problems that arise from having fixed-term Parliaments, creates the biggest constitutional headaches for Parliament itself by inviting the courts to intervene in those matters.
Mr Cash
On that very question, does my hon. Friend recall that the 1911 Act goes further? It does not end by saying that the certificate
“shall be conclusive for all purposes”,
but adds
“and shall not be questioned in any court of law.”
I would simply add to that the word “whatsoever” because of the very problem that he has mentioned. The Supreme Court, or indeed any other court, may seek to take control over this.
Mr Jenkin
I put it to my hon. Friend that that wording in 1911 may well have been sufficient because it would not have entered the heads of the judges in those days to breach the Bill of Rights, but we know that members of the now Supreme Court—note the word “Supreme”—sincerely believe that Parliament is within their purview. We have had the debate about whether the sovereignty of Parliament is a common-law principle—that is, part of judge-made law, rather than an historical fact that exists in its own right as a result of the disputes between the Crown and Parliament in the 17th century.
I believe that it would be helpful if I spoke briefly on this matter, and I take this opportunity to commend my hon. Friend on his new clause. Future Parliaments should have the opportunity to throw out the proposals in clause 2. That would not wreck the Bill, but it would invite questions about what it means and how practical it is. It would certainly impel a future Parliament to consider at the earliest opportunity whether the Fixed-term Parliaments Act should remain on the statute book—I very much hope that it will not—or to put in place much better arrangements to provide for early general elections under a fixed-term Parliament system. The Bill as drafted is nonsense and a potential disaster. If we do not fix it in this place, I hope that those in another place will do so.
Mr Deputy Speaker
All I can say is that all the amendments and new clauses have been chosen in the right and proper way.
European Council
Bernard Jenkin Excerpts(13 years, 11 months ago)
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The Prime Minister
The hon. Lady is so astute about this House she even knows when I am being whispered to while sitting down. I am hugely impressed because she is absolutely right. I answer her in two ways. First, the new Backbench Business Committee—some of its members are in the Chamber—has 30 days a year in which to discuss such matters. Secondly,—this is the important thing—at this Council, we agreed the type of treaty change and gave some clarity about what needs to be done. However, there is now a proper process, which means that this Parliament has to be formally consulted, which it will be, before the treaty change goes through and there will then be a proper process of parliamentary approval. It is all very well the shadow Chief Whip chuntering from the Front Bench, but I do not remember the previous Government being anything like as generous as to give 30 days for the consideration of Back-Bench business. We just dreamed of such things in those days.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
May I say that I agree with the hon. Member for Birmingham, Edgbaston (Ms Stuart): it is extraordinary that we did not have a pre-Council debate. I also wish to press my right hon. Friend on the question raised by my hon. Friend the Member for West Worcestershire (Harriett Baldwin). The Prime Minister said that we will not have liability for the eurozone after 2013, and we very much hope that that is correct. However, the European stabilisation mechanism seems to be an open-ended liability. On 22 November, the Chancellor said:
“we would certainly not be in favour of somehow replenishing it”.—[Official Report, 22 November 2010; Vol. 519, c. 43.]
Are we going to refuse to replenish the European stabilisation mechanism while it continues to exist?
The Prime Minister
As I have said, the stabilisation mechanism is based on the difference between the European budget and its headroom. That is a fact set out in the decision made by the right hon. Member for Edinburgh South West (Mr Darling). The debate in Europe at the moment is about replenishing the other facility. That is known as the facility rather than the mechanism, which, of course, Britain is not in. That is a eurozone facility, and there is a debate in Europe about whether that should be topped up and increased. Obviously, from our perspective, we are keen on Europe using the facility rather than the mechanism.
Independent Parliamentary Standards Authority
Bernard Jenkin Excerpts(13 years, 11 months ago)
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Adam Afriyie
That is a very good question. I have the figure 44 in my head for the number of responses to the initial January consultation. A quarter to a third of them were completely against the kind of scheme IPSA eventually introduced, while the other three quarters or two thirds raised specific issues that were not directly related to the terms of the consultation. The input from Members of Parliament in a public sense was therefore fairly minimal; only about 11 MPs actually made a contribution. That is a little concerning. I think the reason behind that low figure is that we as Members of Parliament all know that anything we write on expenses that is in the public domain is a hostage to fortune. We have to overcome that reluctance, however, because unless we show confidence and courage and make it absolutely clear that we will not tolerate an unnecessarily expensive system and an unnecessarily burdensome bureaucracy that takes us away from our constituents, we will fall into the same trap we have fallen into in the past. I therefore have a tremendous sense of déjà vu.
The expenses scandal coincided with the run-up to the general election—it was almost part of the general election campaign—so there was a political need to resolve the issue quickly. I think we all recognise that, and I think we all accept that something needed to be done fairly briskly. However, on reflection now, a year later, it seems to me that perhaps in our haste we have lost some time. Even with the best intentions in the world, there have been omissions and errors in the establishment of the current regime, and they need to be tackled.
Ignoring warnings from the Clerk of the House and others, we have created a curious beast. We have handed over control of the work of MPs to an unelected and unaccountable body. IPSA is judge and jury; IPSA is both regulator and the regulated. MPs are rightly accountable to the people who elect them, whereas IPSA is accountable to nobody, yet IPSA can control the way MPs work—it can control the amount of time that MPs have available to them to conduct their duties. That is a curious state of affairs, and if we are honest with ourselves we would never tolerate that set-up in any other walk of life, or in any other part of government or the civil service.
I do not doubt that the chairman and board of IPSA have good intentions, but is it right that the current system continues to frustrate the work of democratically elected MPs? The issue is not about us and our minor inconveniences, but about our constituents and the time that we can spend with them, so we have to be bold in what we do.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
To be completely fair to IPSA, the scheme that it had to implement had already been handed to it by the Committee on Standards in Public Life, and if I remember correctly there was a curious collision of timetables, whereby IPSA was set up at the same time as the committee was holding its inquiry. I am afraid that we politicians are responsible collectively for the mess that IPSA inherited from us, and I think that my hon. Friend is appealing for it to take charge, to fulfil its remit and to take full responsibility for the scheme that it now implements.
Adam Afriyie
I very much welcome my hon. Friend’s intervention. It is quite clear that the Committee on Standards in Public Life had not reported at the time when IPSA was instructed to create a scheme, so we must take responsibility for that. We were in a hurry—with the right intentions—to change the system so that an external body would set the rates of remuneration and pay, but it is widely recognised that in our haste we created something that needs adjustment.
Hilary Benn (Leeds Central) (Lab)
I welcome the opportunity provided by the Backbench Business Committee to debate the operation of IPSA, courtesy of the effort shown by the hon. Member for Windsor (Adam Afriyie). I do not propose to rehearse how we got here, as other hon. Members have done so, except to say that parts of the previous system did not bear close examination, nor did they command public support when they were unveiled to public view. The hon. Member for North Thanet (Mr Gale) summed it up well when he said that things went badly wrong.
Things had to change, and the Parliamentary Standards Act 2009 was the means by which the system was changed. As the House has learned, transparency was the best way of dealing with the problems of the past and is the best way of doing things. Members know that all the expenditure that they incur will be seen and scrutinised by the public. When the public, our voters, see the cost of the phone calls, the office rent, the stationery, the train travel and the accommodation, which is published today by IPSA, they too will realise that this is about nothing more and nothing less than the tools that MPs need to do their job.
The first point that I want to make is that in debating changes to the system as a prelude to the review that IPSA is undertaking—changes that are definitely needed—we must preserve the principle of transparency, a point made by my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) and many others, and we must uphold the principle of independent oversight. I gently say to my hon. Friend the Member for Bassetlaw (John Mann) that nobody wants to overturn that, and nor should we.
Mr Jenkin
Will the right hon. Gentleman comment on the fact that IPSA has said it is not going to publish invoices and evidence of payment? Does he agree that it is slightly illogical to have a system based on transparency and evidence of payment if we do not then publish the evidence of payment, and that that recalls how we got into this mess in the first place?
Hilary Benn
I would make two points. First, an independent body is now looking at those receipts and making a judgment about whether they come within the purview of the rules, which is very different from what happened before. Secondly, there is a balance to be struck between the cost of publishing receipts—it would be very expensive—and total transparency. Since one of the themes of our debate has been the cost of IPSA as a whole, in offering a view, the House will, in the end, have to say to IPSA, “How do we wish to balance that?”
Mr Harper
I am grateful for that intervention. I shall now try to make some progress, as I want to leave sufficient time for other hon. Members who wish to get in.
I said that the Prime Minister would be listening closely to this debate. In July, during Prime Minister’s questions, he said that:
“what is necessary is a properly transparent system, a system with proper rules and limits which the public would have confidence in, but what we do not need is an overly bureaucratic and very costly system. I think all those in the Independent Parliamentary Standards Authority need to get a grip of what they are doing, and get a grip of it very fast.”—[Official Report, 14 July 2010; Vol. 513, c. 946.]
That is what all Members have said today. They want IPSA’s system to be transparent, straightforward, not bureaucratic and not costly. IPSA should get on with that.
Mr Jenkin
Does the Minister agree that, as with the House of Commons, IPSA is unlikely to survive a freedom of information request for evidence of payment to be produced? How can it justify withholding evidence of payment—all the invoices—on grounds of cost? That is part of the cost of the system, and it is going to have to bear it.
Mr Harper
That may well be the case, and I think that IPSA has admitted in public that if people apply for receipts through freedom of information requests, it may well have to do that. We will have to see how it gets on. That is the decision that it has made, which the shadow Leader of the House said is a balance between transparency and cost. It may find that the rules of freedom of information affect it as they affected the House.
The hon. Member for Bassetlaw (John Mann) was right to point out, as did other Members, what happened in the past and the fact that the House made the decision to have an independent system. That is important, as well as the transparency issue. I listened very carefully, but I do not think that anyone during the debate was urging that we go back on that; in fact, Members made good points about ensuring that we retain both transparency and independence.
Hon. Members gave examples of how they thought the system should move and a number spoke in favour of a flat-rate payment, including my hon. Friend the Member for Windsor. However, a number of Members, including the right hon. Member for Torfaen (Paul Murphy), the hon. Member for Manchester Central (Tony Lloyd) and my hon. Friend the Member for North Thanet (Mr Gale), pointed out that a flat-rate system, which does not take into account the variance in costs across the country, may not be a perfect one and that there needs to be some flexibility. They all suggested ways in which that flexibility may be achieved.
We have heard from several Members about their various experiences. IPSA itself has recognised that in the first few months of running the system it made mistakes; it has been very transparent about that. We know that it made mistakes and that it needs to improve the system. The hon. Member for Bassetlaw and the shadow Leader of the House referred to improvements that have been made in the system. IPSA now makes some direct payments to landlords for constituency office rental, it now pays against invoices, and the travelcard can now be used to pay other bills. Most importantly, it implemented advances to Members to deal with the genuine problem that very many Members do not have significant amounts of money and are not in a position to meet these costs out of their own pocket and then claim money back—costs which, as many Members have said, one would not expect any other person in business, in a position such as ours, to have to pay out of their own pocket, and would reasonably be thought of as proper business expenses.
Having said that, what I have heard does not suggest that the legislation necessarily needs to be reviewed. Under the legislation introduced by this House, the expenses system and the way that it operates is a matter for IPSA. No change in legislation is required to be able to deal with the issues that have been raised in the House. Indeed, in the letter that IPSA recently circulated to Members, it said that it will conduct its annual review of the scheme in the new year and will look at the problems that have been experienced by MPs. It specifically refers to the impact of the scheme on family life, which was raised by Members on both sides of the House, and the impact on Members living in the outer reaches of the London area—indeed, in places that most people in this House probably would not consider were in the London area. IPSA has also said that it will balance its requirements for assurance against the administrative burdens on itself and on Members. That is welcome and shows that it is listening.
Under the Parliamentary Standards Act 2009, IPSA is required to consult the Leader of the House as one of its statutory consultees, and the Government are considering how we can use that opportunity to submit evidence to IPSA. As Members will know, my right hon. Friend the Leader of the House is very familiar with the issues raised with him by many MPs, either privately or on the Floor of the House at business questions.
The Government strongly support the principles of independence and transparency for IPSA, as does the shadow Leader of the House. The review that IPSA is about to undertake is its opportunity to deliver a system that remains transparent, which is probably the best way of determining that Members behave properly, but is also more efficient and less bureaucratic. I am sure that I speak for Members on both sides of the House in urging IPSA to take that opportunity and deliver a system that improves on what we have today.
Fixed-term Parliaments Bill
Bernard Jenkin Excerpts(13 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I think it would help the Committee if the Minister could cite an academic paper, some judicial text or something else that bears out this notion that Her Majesty the Queen would interfere in politics in the way he is suggesting she would. Can he quote anything?
Mr Harper
The position is that Her Majesty the Queen appoints Prime Ministers and the ultimate constitutional long-stop is that if a Prime Minister behaves in a way that is outwith the constitutional position, the monarch can dismiss the Prime Minister—but that is the long-stop constitutional safeguard in our system.
Mr Harper
I shall deal with the specific amendments shortly, when I set out why the Government think that they are unnecessary and that their drafting makes them flawed. If the hon. Gentleman does not think I have adequately dealt with his point, he will be able to intervene on me and I will happily take such an intervention. We have debated the fact that there is also a purpose in the Bill’s not specifying the exact words in legislation, because such an approach gives the House some necessary flexibility. I will return to that in a moment.
Let us consider the amendments in order. Amendment 5 was tabled by my hon. Friend the Member for Stone (Mr Cash), who is not able to be here today because he is away on other parliamentary business. He explained that his amendment would remove the 14-day period before an early election was called in the event of the Speaker certifying that the House had passed a vote of no confidence. It is right to say that there would be circumstances in which it would be appropriate to move to an early election when the House determined that we should do so, and the Bill provides for that in clause 2(1). But it is perfectly possible that there may be circumstances within a fixed term in which a legitimate Government could be formed from the composition of the House as it then stood, so it would not be appropriate to insist on an election. Members will have been elected for five years, and they are able to give their approval to a Government formed from within their ranks without the need necessarily to go to the country. The House can decide to do so, because under our proposals if a vote of confidence is lost and no Government can be formed within 14 days who subsequently receive a vote of confidence, a general election would take place. It seems sensible to give the House the opportunity to test whether a Government can be formed.
My hon. Friend’s amendment contained a fundamental misunderstanding about what a Prime Minister should do in the event of a Government losing the confidence of the House. Two things can happen. One possibility, under our current system, is that a Prime Minister remains in office but invites Her Majesty to dissolve the House and call a general election. Thus the Prime Minister does not resign immediately, and that is what happened when the House expressed its lack of confidence in the Government in 1979. Mr Callaghan did not resign when he lost the vote of confidence; he resigned only when he lost the subsequent election. Alternatively, the Prime Minister could resign almost straightaway after losing a vote of confidence, as happened in January 1924 when the Government’s motion for the Loyal Address after the Queen’s Speech was amended: Prime Minister Baldwin resigned and the Labour Opposition formed a Government. This Bill seeks to encapsulate that double-sided convention.
At the moment, if a general election has an unclear outcome, the Prime Minister is able to test his support in the House of Commons. If the House then signalled that it did not have confidence in that Government, that Prime Minister would go and a new one could be appointed. Amendment 5 would insist that another general election took place, and if the result of that general election was unclear, we could end up having a succession of general elections. Amendment 5 would force such elections to be held. In countries that have fixed-term Parliaments it is very common for there to be a period of Government formation after a vote of no confidence before an election is triggered. That is what happens in Germany, Greece, Italy, Spain and Sweden, so we are proposing an approach that has much precedent, which we think is sensible. We cannot ask my hon. Friend the Member for Stone to withdraw his amendment, because he is not here and thus unable to do so. However, we urge Members who are here not to insist on it being pressed to a Division.
Mr Jenkin
I have been in touch with my hon. Friend the Member for Stone (Mr Cash), who makes things complicated because he does not text people. He is in Budapest representing the European Scrutiny Committee, but he has suggested that it would be in the interests of the scrutiny of this Bill to press the amendment to a Division, and one or two of us will attempt to do so.
Mr Harper
As I said, my hon. Friend the Member for Stone is away on parliamentary business and, as he has perhaps not reached 21st century methods of communication, my words are unlikely to reach him in a timely way. So I can only urge him not to press his amendment to a vote, but I suspect that the decision on that will be for others, not for him.
Mr Jenkin
I beg to move amendment 6, page 2, line 15, leave out subsection (3) and insert—
‘(3) Any certificate of the Speaker of the House of Commons given under this section shall be conclusive for all purposes and shall not be presented to or questioned in any court of law whatsoever.’.
The Second Deputy Chairman
With this it will be convenient to discuss the following:
Amendment 23, page 2, line 17, at end insert—
‘(4A) The Speaker shall issue a certificate under subsection (1) or (2) within 24 hours of the relevant conditions being met under subsection (1) or (2).’.
Mr Jenkin
Amendment 6 stands in the name of my hon. Friend the Member for Stone (Mr Cash), who, as I mentioned earlier, is abroad on other House business as Chair of the European Scrutiny Committee.
We are at a curious juncture in the Bill and, indeed, in our constitutional history. The background to the amendment is the tension, since time immemorial, between this House’s ability to function immune from judicial interference, and the courts, which periodically have sought to limit the extent to which we can continue our business unimpeded by the courts. That was, of course settled—to a degree—in the Bill of Rights in 1789—
Mr Jenkin
Sorry, 1689. My hon. and learned Friend will keep me up to the mark, because he is much more of a lawyer than I am.
In recent years, however, the tension between the courts and the independence of this House has been thrown into relief. I remind the Committee of cases such as the one brought by Lord Rees-Mogg for judicial review of the ratification of the Maastricht treaty after this House had passed an Act of Parliament.
Jacob Rees-Mogg
I would like to clarify that the judicial review case brought by my noble kinsman was not in any way to challenge what had happened in this House. It was to challenge the use by Ministers of the royal prerogative, which is why the judicial review was allowed by the courts.
Mr Jenkin
I stand corrected—again. I fear that that may occur rather often during my presentation. The case relating to the Hunting Act 2004 was certainly an attempt to impede the free functioning of Parliament in its judicial function. In addition, an attempt was made to judicially review the lack of a referendum on what was then the Lisbon treaty. There are other examples of that tension, not least over the arrest of my hon. Friend the Member for Ashford (Damian Green), and I believe that only today, in connection with another matter, are the limits of the courts being resolved.
The present situation begs for something that many have recommended for some time: that this Parliament should have a privilege Act to delineate clearly the immunities of Parliament in relation to the functioning of the courts, but we are in an even more tense situation because we are arranging our constitution in other areas that question the very sovereignty of the House. We now have a Supreme Court and it is widely known that many jurists who serve at various levels of the judiciary take differing views of the notions of parliamentary sovereignty and parliamentary privilege. There was recently a case concerning the possible effective expulsion of an hon. Member as a result of a judicial decision. I do not comment on its merits as it is still sub judice. I merely advert to the fact that it represents another testing of the boundaries between the courts and Parliament.
We are told not to worry—the Bill’s provisions are immune from the courts, and nobody is going to interfere in what we decide is a Speaker’s certificate, certificating a vote of no confidence that satisfies the majority. When we are blandly and bluntly told that by the Government and at the same time told by the Clerk of the House who has bravely and independently—in his constitutional capacity as an independent guardian of our constitutional arrangements—issued a memorandum, to which I shall refer later, that flatly contradicts the Government’s view, we are obliged to take the matter very seriously.
I cannot think of a precedent, other than the Parliamentary Standards Bill, where a Government flatly refused to accept the advice of the Clerk of the House on a question of the potential justiciability of legislation before the House. The Bill before us is a major change to the constitutional settlement of this country, and it is backed by people in the Government who we know favour a written constitution—an entirely different constitutional settlement. That raises the question whether the Government have got it right when they say that the Clerk’s fears are to be disregarded.
With the indulgence of the Committee, I shall quote rather extensively from the memorandum submitted by the Clerk as written evidence to the Political and Constitutional Reform Committee. He states that the Bill is
“to make statutory provision for matters which fall within Parliament’s exclusive cognizance and which may affect the established privileges of the House of Commons as well as upsetting the essential comity which has been established over a long period between Parliament and the Courts.”
Erskine May makes it clear that “cognizance” refers to the right of both Houses
“to be the sole judge of their own proceedings, and to settle—or depart from—their own codes of procedure.”
The Clerk is clear in a bald statement in paragraph 12 of his memorandum:
“The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates.”
He goes on to explain how that occurs under clause 2(2), which we have already debated. In paragraph 16 he states:
“The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.”
That should be obvious. We know that Crown prerogative, as exercised by the Prime Minister, is subject to judicial review. We know that statute is subject to judicial review. We know that proceedings in the House and Standing Orders have not hitherto been subject to judicial review or judicial question. The Bill provides a connection between what happens in the House and in the rest of the world. We are providing a bridge of law that brings the courts into the House.
Tristram Hunt (Stoke-on-Trent Central) (Lab)
Does the hon. Gentleman think, therefore, that the amendment goes far enough? The solution, as the Clerk of the House sees it, is for the Speaker’s certificate to be provided for not in statute but under a Standing Order, which would prevent the courts from interfering in the proceedings of the House.
Mr Jenkin
The hon. Gentleman makes an extremely important point, to which I shall return. The entire Bill could be dealt with through Standing Orders. The only reason we have a Bill is either that a Bill is favoured by those who want to move towards a written constitution—I do not remember that being in anybody’s manifesto—
Mr Jenkin
There we are. Perhaps that is why the Opposition support the Bill. We have just had a Division in which 400 right hon. and hon. Members were in the No Lobby and only a handful of us in the Aye Lobby. That underlines the curious consensus in favour of certain principles of the Bill. I do not think either of the elected parties in the coalition was in favour of a written constitution—[Interruption.] That is two parties, but the one that won the election certainly did not—
Chris Bryant
To clarify, I think the Liberal Democrats were in favour of a written constitution, and we were in favour of looking at a written constitution.
Mr Harper
For the avoidance of doubt, the Government’s position is that they are not in favour of moving to what is more accurately said to be a codified constitution. Many of our constitutional principles are, of course, written down, just not in one document. It is not the Government’s position to do so. I hope that cheers my hon. Friend up.
Mr Jenkin
I am grateful for that assurance. The Minister, who in all these debates has shown impeccable manners and tact despite the pressure he is under, should be looking for an alternative way of delivering this part of the coalition agreement, to which the hon. Member for Stoke-on-Trent Central (Tristram Hunt) alluded.
The Speaker’s decisions will be taken under immense political pressure, as he decides what constitutes a confidence motion, what amendments might be tabled to amend a confidence motion, whether, if carried, that would invalidate the motion, whether the amendment could constitute a motion of confidence, and the consequences of amendments being carried or the motion being carried.
I quote again from the Clerk’s memorandum:
“As these would become justiciable questions, the courts could be drawn into matters of acute political controversy.”
I respect the fact that many in the House think we should have a Supreme Court like the European Court of Justice in the European Union or the Supreme Court of the United States, which is essentially a political court, but that is a very big constitutional change. We ought to have a royal commission about it, there ought to be debates on the Adjournment about it and the implications of drawing the courts into politics, if that is what we are going to do, ought to be properly explored. The way in which the Supreme Court is appointed to make it accountable for its political judgments is another important question.
We are importing continental and American-style jurisprudence into our judicial decision making. Some judges are becoming more and more adventurous about how they interpret statute and where they feel entitled to make judicial interpretations, and the Bill invites them to decide when there might be a general election under particular circumstances.
Jesse Norman (Hereford and South Herefordshire) (Con)
Will my hon. Friend distinguish between two things: judicial activism, where there is extraordinarily little evidence that judges in this country are overreaching, although the same is not necessarily true in Europe and in the European Court, and impingement on the prerogatives of Parliaments, which is what the Bill covers? We should be focusing on the latter point.
Mr Jenkin
I am perfectly prepared to accept that point. I refer to judicial activism only because there are champions of judicial activism who would like the courts to be more judicially activist. The Bill creates circumstances whereby we tempt judicial activism, which is contrary to our legal traditions. It increases the danger of the Government’s assurances simply not being delivered, or of their not being able to make these assurances with any confidence.
The Clerk, in his memorandum, specifically says:
“In the case of Clause 2(3) it would be for the court to determine whether a document issued by the Speaker was a ‘certificate’ for the purposes of that clause. It is not impossible for a court to take the view that what appeared to be a certificate was not a ‘certificate’”.
The memorandum has been considered by the Select Committee, which attempted, in the short time available, to conduct pre-legislative scrutiny. It reached two principal conclusions. Paragraph 8 states:
“The Government needs to respond to the concerns expressed by the Clerk of the House of Commons about the potential impact of clause 2 of the Bill on parliamentary privilege.”
Paragraph 9 states:
“The purpose of the Bill needs to be achieved without inviting the courts to question aspects of the House’s own procedures or the actions of the Speaker, except where this is absolutely unavoidable and clearly justifiable.”
The qualification reflects the fact that on the Committee there was some disagreement about the seriousness of the threat and between those who are in favour of a written constitution and those who are in favour not of a written constitution but of the settlement that relies upon our immunity.
On whether there are alternative ways of achieving the Bill’s intentions without the risk of judicial interference, the Committee noted, in paragraph 38:
“As the Committee has noted, setting out the requirement in Standing Orders would not be satisfactory because Standing Orders can be amended, suspended or revoked by a single simple majority vote of the House of Commons only.”
That is not correct. I have taken further advice from the Clerks and I have a letter from the Clerk Assistant and Director General, Mr Robert Rogers, which, if the Committee will indulge me, I will quote. He explains that there is a precedent of super-majorities in Standing Orders being used, for example, on closure motions in the 1880s. He says:
“As to the practical issue of a “super-majority” SO being able to be amended or repealed only by a super-majority, I see no difficulty. The Speaker would be the arbiter of whether a motion…either was (a) orderly and (b) had been agreed to; he would be bound by the Standing Order (which should perhaps contain an explicit prohibition on “notwithstanding”-type Motions), and his decision would be beyond any external review.”
That neatly and devastatingly removes the need for the entire Bill. We could be operating entirely through Standing Orders, which would be protected by the super-majority that the Government want to embed in legislation for general elections. It leaves the question of why the Government are resisting this advice.
Amendment 6 is a more elaborate way of saying what the Government have already put in the Bill. I would be the first to accept that it may be regarded as a more elaborate bit of sticking plaster, because the clause will be subject to judicial interpretation. A certificate could not be presented to the courts—not even the Speaker could present one to a court for adjudication. The word “whatsoever” in the amendment means that we are referring not just to our own courts, but to the European Court of Human Rights, which is not just a figment of some Eurosceptic’s imagination. The Clerk himself has adverted to the fact that the ECHR, under article 10, could be adverted to as a cause for judicial review.
If a Member of Parliament was prevented from voting in the motion of confidence, they could say that their vote should be taken into account for a valid certificate to be issued by the Speaker. They could therefore mount a challenge saying that the certificate was not valid because they were prevented from voting. A question also arises if sick colleagues cannot get into the Lobby and are nodded through. Would that constitute a ground for challenging a vote of confidence?
Jesse Norman
Was not there an example in the 1970s of whether a Member had been able to vote? There was a tied vote and Harold Lever, I think I am right in saying, felt that he had not been able to exercise his vote. He might have had grounds under this Bill, if the Clerk is right, to invoke the care and attention of the courts.
Mr Jenkin
My hon. Friend adverts to an extremely relevant precedent. What would happen if a two-thirds majority was obtained, or not obtained, by just one vote, or the Speaker interpreted the result as a vote of confidence where there was one vote in it that was represented by somebody who was or was not present for whatever reason? These are very dangerous areas.
I have two final points, and I am grateful for the indulgence of the Committee in allowing me to quote extensively from documents. The Bill is being driven by an extraordinary consensus on some issues and by the fact that it is so close to the survival of the coalition that it is difficult openly to debate it. The Prime Minister said before the election that Committee stages of Bills should not be whipped, so that what a Committee thought can be understood. The Whips are out in force today, and I do not think that we will really find out what Members think about it. However, that invites the other place to look at the privilege and immunities of the House, and to propose comprehensive amendments that protect Parliament from judicial review.
Mark Durkan
Is the hon. Gentleman satisfied that either the Bill or amendment 6 would protect against judicial intervention on the ground of failure to issue a certificate—a controversy that could easily arise, particularly in the light of provisions in respect of a motion of no confidence? The certificate issues only after the 14-day period has been allowed—it does not issue at the time of the debate or just after the vote, but later on—and there could be controversy about the failure to issue a certificate or about whether a certificate could be issued. Someone might try to bring that to the court.
Mr Jenkin
The hon. Gentleman is absolutely right. The amendment, as drafted by my hon. Friend the Member for Stone, deals with only one aspect of the matter, and, given our limited time to scrutinise this enormously important Bill, I explicitly invite the other place to look carefully at all the aspects and the advice of the Clerk. One of its own Committees is considering the matter and might well come up with different conclusions from those of the Commons Political and Constitutional Reform Committee. The Lords sorted out the IPSA Bill, under which they kept our proceedings immune from the courts, and I very much hope that they will do the same with this Bill.
My concluding point is a general one about the Bill but is relevant to the amendment. I do not think that I can recall a major constitutional measure that was so closely associated with the survival of one Administration. We have to pinch ourselves when we think of what we are doing in reality: we are completely changing our constitutional settlement at the behest of a coalition, so that it can remain in power for five years. I do not even think that that is ethical. Parliament’s immunity is basically being screwed up, and, although a Bill can at least be repealed, once the courts have been allowed into our proceedings, we will never get them out again without a major break in the constitution such as in 1689.
All that can be forestalled if the Minister simply says, “These matters cannot be resolved today,” because they cannot be resolved on the basis of parliamentary counsel’s advice to Ministers about the drafting of Bills. We need the other place to give the highest and most independent legal advice to ensure that we do not inadvertently bring about what the Government themselves do not want to see.
Chris Bryant
Many thanks are due to the hon. Member for Harwich and North Essex (Mr Jenkin), who has done us a great favour by pointing out some of the problems in this small aspect of the legislation. He is absolutely right to say that large parts of the Bill exist only for the preservation of a single Administration. I do not know the appropriate Latin equivalent of ad hominem legislation, but this is “ad administrationem” legislation, which is why some provisions will not stand the test of time. The best that we can do is try to ensure that the elements of real peril are tidied up.
The hon. Gentleman was right in several regards, but not in one. He talked about the IPSA Bill having been miraculously improved in the other place, but none of us really thinks that we ended up with a perfect situation or that nirvana arrived by virtue of that Bill. However, on the Bill before us—I suspect this would also apply to the other constitutional Bill that we recently scrutinised—he is right that if there were a free vote, none of the legislation would go through at all.
Mr Jenkin
If the Parliamentary Voting Systems and Constituencies Bill had been separate Bills, I do not think that either would have gone through.
On the IPSA Bill, at one stage there was a proposal to allow IPSA to adjudicate on and punish Members for breaching the rules. That would have driven a coach and horses through our traditional immunities under the Bill of Rights, but it was removed in the other place.
Chris Bryant
Indeed. As the hon. Gentleman said earlier, a privileges Act will be needed at some point, and I hope that the Government turn to such legislation. I realise that there are problems with any written or “codified”—to use the Minister’s term—constitution, because one risks making it justiciable and must then decide what will be the justice that oversees it. Will it be a supreme court or a constitutional court, such as many other countries have? That is a debate for another day, however.
Chris Bryant
In a sense, that is an argument against the whole Bill which I understand. I know that the hon. Gentleman is not saying that this is a conspiracy, but I think that the hon. Member for Harwich and North Essex feels that a bit of a cosy consensus has developed around the fact that there should be a codification of fixed-term Parliaments. We agree with that codification. However, once one starts to codify one element, one has to codify rather a lot of them. That is why I have wanted to codify what counts as a motion of no confidence and what should be a motion of confidence. Perhaps we should have tried to codify it in a slightly different way so that, for instance, a motion to amend the Loyal Address could also be considered as such, as in 1924.
Mr Jenkin
What the hon. Gentleman is suggesting might well be sensible in one respect, but I fear that it will not prevent the courts from having a go at this. Indeed, if what constitutes a motion of confidence is codified in our Standing Orders, the courts will then be interpreting whether our Standing Orders reflect what could be regarded as such. If he wants clarity and is seeking to provide a better definition, this has to be put into the legislation. Of course, that reflects the point that we are tempting the courts to interfere in the proceedings of this House.
Chris Bryant
That is an interesting point. The Bill of Rights refers, I think in section 9, to the fact that proceedings in Parliament shall not be touched by any other court. The moot point then is what constitutes a proceeding in Parliament. There have been many discussions about this over the past couple of years, not least in relation to the arrest of the hon. Member for Ashford (Damian Green). The hon. Member for Harwich and North Essex is right in one sense. However, I have presumed—this is the advice that I had when I sat on the Government Benches as Deputy Leader of the House—that parliamentary privilege covers proceedings in Parliament and the whole of the Standing Orders of this House, because that how this House chooses to proceed. I think that there is greater security in the Standing Orders of the House.
Another issue is how we ensure that the Speaker is not dragged into a partisan contest, particularly at a moment of great political drama. As I said in an earlier debate, my concern is that if it is left for the Speaker to have to determine all these elements, the Speaker’s impartiality is compromised.
Another strange element of the Bill is the provision that says that before the Speaker issues his certificate, he shall consult the Deputy Speakers. That mirrors the provision in the 1911 Act whereby the Speaker, before issuing his certificate on a money Bill, has to consult two members of the Panel of Chairs. What happens if all the Deputy Speakers disagree with issuing the certificate? Why should the Speaker have to consult? One presumes that it is simply a matter of fact, although I suppose we all know that facts are rarely clearly delineated and are rather more subjective than most people would want to admit. The point is, however, that this puts the Speaker and potentially the House in peril, because people may want to contest any one of the various elements of the Speaker’s decision. One of the matters that would almost certainly arise if there were any contest as to whether the certificate was being rightly issued is what the Deputy Speakers had said. That is an unfortunate direction for us to take.
We have tabled an amendment, on which I hope to divide the Committee, on the timing of when the Speaker issues the certificate. At the moment, the Bill makes no provision whatsoever on when the Speaker’s certificate should be issued. One therefore presumes that it could be a month, two months or several months after the passage of two weeks. Let us say, for instance, that after a motion of no confidence has been carried, the Government try to reform themselves with a different concatenation of political parties and do not manage to secure a new motion of confidence, but there are still patently ongoing negotiations that are nearing their closing phase. Would it then be all right for the Speaker not to issue a certificate at that point but to wait until such time that another Government had been formed? The difficulty is that if the Speaker chose not to do so, who is to gainsay the Speaker? There is no provision in the Bill for what would happen if the Speaker has not done what the Bill requires.
For all those reasons, I believe that this element of the Bill is flawed. I also believe that certain elements should not be in statute but should be in Standing Orders in order to provide greater certainty for the House by taking them within the concept of proceedings of this House. Above all, I want to ensure that there is no uncertainty about the specific provision as to when the Speaker has to act and when the Speaker may act.
Mr Jenkin
My hon. Friend is making an extremely important point about the European Court of Human Rights. As soon as something gets into the Court, it respects no immunities whatsoever—nor does the European Court of Justice, but that is not adverted to in this case. Once a case is in that system, we do not know where it will lead. The European Court of Human Rights certainly would not respect the limitations of the 1689 Act.
Jesse Norman
I do not wish to comment on the procedure or intention of the European Courts, but I note merely that it is true historically that their scrutiny has extended itself over time. It is noted less than it should be that European judges have expressed concern about the exercise of parliamentary privilege and about the lack of remedies that people possess against its exercise.
The final reason why the Government should look again at the amendment is that the consequences of a mistake could be momentous. In the short term, a dissolution of Parliament and thereby an election could hang on it. In the longer term, there could be wider political and constitutional implications of judicial scrutiny of our power.
The amendment is simply worded, it offers an additional layer of protection for Parliament against a serious threat, and it does so at little or no additional cost. I urge the Minister to give it serious consideration.
Tristram Hunt
I, too, shall speak to amendment 6, which would take us some way in the direction in which we should be heading to protect this place from the actions of the courts.
Every day, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, we see growing evidence of interference by and elements of activism in the courts. We now have the Supreme Court in Parliament square, and large buildings tend to have large consequences. The emeritus professor of public administration at University college London, Professor Gavin Drewry, has recorded a major shift towards cases of public law, with some high-profile cases having a constitutional air:
“The establishment of the Supreme Court is an important constitutional landmark, and it would be surprising if the Court itself were to stand completely aside from the ongoing process of constitutional development.”
There is a strong sense of certainty that the Supreme Court will be involved.
It is apposite to be discussing this Bill after this morning’s judgment in the case of three former Members of this House, Morley, Chaytor and Devine, and also a peer, against their claim of parliamentary privilege. In his summation, Lord Phillips noted that
“extensive inroads have been made into areas that previously fell within the exclusive cognisance of Parliament.”
His statement should be of major concern to parliamentarians when considering the Bill, and in particular to Ministers, who I hope have read and digested the judgment and are coming to sensible conclusions about it.
If I may, I shall quote Lord Phillips at greater length:
“Where a statute does not specifically address matters that are subject to privilege, it is in theory necessary as a matter of statutory interpretation to decide a number of overlapping questions. Does the statute apply within the precincts of the Palace of Westminster? If it does, does it apply in areas that were previously within the exclusive cognisance of Parliament? If so, does the statute override the privilege imposed by article 9? In practice there are not many examples of these questions being considered, either within Parliament or by the courts. If Parliament accepts that a statute applies within an area that previously fell within its exclusive cognisance, then Parliament will, in effect, have waived any claim to privilege.”
Those are damaging and dangerous comments, which have wide repercussions.
Lord Phillips argues that the ultimate judgment of such matters rests with the courts. He quotes approvingly a letter written on 4 March 2010 by the Clerk of the Parliaments to the solicitor acting for Lord Hanningfield which had been approved by the Committee for Privileges:
“Article 9 limits the application of parliamentary privilege to ‘proceedings in Parliament.’ The decision as to what constitutes a ‘proceeding in Parliament’, and therefore what is or is not admissible as evidence, is ultimately a matter for the court, not the House.”
We should consider that evidence and the actions of a growing number of judges in considering the Bill.
Tristram Hunt
I agree with the hon. Gentleman and with the fundamental basis of his analysis, which is that the constitutional reform programme is driven by the immediate necessities of the Government in the context of this Parliament. We are making major decisions that will have wide ramifications in the functioning of the constitution of the United Kingdom, based on a political programme and timetable. That is never the best way in which to develop deep consensus thinking about the constitution.
I would finally raise a point that the Clerk of the House has also raised. As he put it in a note to the Committee in the other place,
“given that a draft Parliamentary Privileges Bill has now been announced, why deal in advance and separately with a matter affecting the proceedings of the House of Commons in legislation”,
if it is not for the specific political purposes of the current Government?
Mr Jenkin
We all know that we are talking about heated and potentially controversial circumstances. If there was a raging controversy about alleged malpractice in our proceedings or surrounding them, and if public opinion was strongly supportive of one view or the other, there would be intense pressure on a court to intervene. Does my hon. and learned Friend not think it would be difficult for a court not to intervene under such circumstances?
Mr Cox
No, I do not think that. Intense pressure is precisely what an independent judiciary is set up to resist. One would expect and hope for that from a senior judge. We are fortunate in the judiciary we have in this country. I hope that hon. Members will reflect carefully on some of the language that we have used in this debate today. It is not the case that the judiciary have an appetite to assume the powers of this House. Indeed, in my experience the preponderance in the judiciary is to be careful and scrupulous in the way they observe the parameters of judicial power.
The problem is—if I can extend this parenthesis as briefly as I may—that we have invited the judiciary into the territory time after time, since the European Communities Act 1972, which fundamentally altered the constitutional arrangements in this country. It essentially meant that there was a higher constitutional court, namely the European Court of Justice—we already have it—which presupposes and believes it is capable of trumping domestic law. That ultimately led to a decision in a case called Factortame, in which an Act of Parliament was set aside by the House of Lords, on the basis of the seniority—or superiority—of the European Union’s law. Then we had the Human Rights Act 1998, which preserves—or attempts to preserve—a careful balance. Nevertheless, it invites the courts into consideration of the policies and legislative objectives—almost on the basis of their merits—that this House has always considered to be its prerogative and to fall within its exclusive sphere. The courts are careful, but they themselves acknowledge that the Human Rights Act has invited them further into that territory.
Mr Jenkin
At the risk of repeating what I have already read out from the Speaker’s memorandum, I want to ensure that we are not speaking at cross-purposes. In paragraph 16 of the Committee’s report, the Clerk makes it very clear, in discussing clause 2(2), that
“The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.”
I do not think that the Clerk could have been clearer: it is subsection (2) that he is concerned about.
Mr Harper
I had a conversation with the Clerk about the certification, with the majority being specified. The Government decided to place the provisions on the early general election in statute rather than relying on Standing Orders because, as I stated in the memorandum I placed in the Library on 13 September, we cannot achieve the policy objective by relying on Standing Orders, which can be changed by a simple majority—
Mr Harper
Let me just finish this point, then I will take an intervention from my hon. Friend.
Standing Orders can be changed by a simple majority. The Government’s view was that, if that was the case, the power to dissolve Parliament early would effectively be left with the Prime Minister.
Mr Jenkin
I beg to suggest that, if the Minister had listened carefully to what I said earlier, he would have heard me reading from a letter I had received from Mr Robert Rogers, who made it absolutely clear that it is possible to entrench a Standing Order of this House with its own super-majority. I am astonished that the Government do not understand that, and that the whole basis of this Bill seems to rest once more on the denial of advice given by the Clerks of the House.
Mr Harper
My hon. Friend cited in the letter from Robert Rogers a reference to existing Standing Orders, which require a particular majority for an event to take place. I think he mentioned the requirement for 100 Members to vote for a closure motion. There is no precedent for a Standing Order, passed by a simple majority, to entrench itself and require that it cannot be changed, other than by a vote of this House on a different majority. The Government know of no precedent for that, and no Member has given an example of one. If a Standing Order provided that an early general election could be held only after a vote with the specified majority, and if that Standing Order could be changed by a simple majority vote in the House, it would be open to the governing party, at the behest of the Prime Minister, to change the Standing Order and to trigger an early election based on the whim of the Executive. That is exactly what we are trying to remove under the Bill. The Government believe that if the policy objective is to be achieved, the procedure must be specified in statute.
Mr Harper
If a certificate was issued by the Speaker, we would be having an election, not stopping one taking place. I do not think that my hon. and learned Friend’s concern that the courts would hold that the population were being deprived of an election would apply. The language used in the Bill was chosen for exactly the reasons I have suggested. We have used well-precedented, tried and tested language; it has stood the test of time. It is perfectly true to say that people can make groundless applications to courts on all sorts of things, but courts quickly dismiss them and prevent them from proceeding further. We are confident that these proposals are robust and will not have the effect that hon. Members suggest.
In the few minutes remaining, I wish to discuss amendment 23, because the hon. Member for Rhondda (Chris Bryant) suggested that he wanted to ask you, Mr Evans, whether he could press it to a Division. The amendment proposes a 24-hour time limit for the issuing of the Speaker’s certificate. I can superficially see why that might be attractive, but it sets some conditions that might introduce elements casting doubt on the validity of the certificate if it were delayed, even if it were by only a few minutes, or if it were issued close to the time limit. Thus, the amendment would enable people to question the certificate. We should therefore rely on the standard practice, whereby the Speaker’s certificate is the conclusive provision.
Given what I have said, I hope that hon. Members will not seek to press their amendments to a Division and that we are able to proceed with the debate.
Mr Jenkin
I am most grateful, Mr Evans, for the opportunity to reply to the debate.
I regret that I feel compelled to press this matter to a vote, but I feel that the Minister’s response has been wholly unconvincing. We are faced with adamant and clear advice from the Clerk of the House that the Minister has chosen to dismiss as irrelevant. Let me remind the Committee what the Clerk said:
“The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.”
That includes
“what constitutes a confidence motion, the selection of amendments to such Motions and the consequences of their being carried”.
He goes on to say:
“As these would become justiciable questions, the courts could be drawn into matters of acute political controversy.”
The Minister has not responded with anything substantive to defeat that advice.
Moreover, the Minister has rested his justification for the Bill on the assertion that it would not be possible to write these provisions into the Standing Orders, which would be automatically immune. Let me read from the Clerk’s memorandum again. He said that
“a Standing Order regulating the matters in the Bill could provide for its staying in effect unless repealed by a specified majority”,
meaning that it could be entrenched,
“for example by…equal to or greater than two thirds of the number of seats in the House. Not only is the principle of specifying majorities already written into the Standing Orders of the House, but in the past the House has also required a relative majority for reaching decision.”
My hon. Friend the Minister also dismissed the comments that I read from Mr Robert Rogers, the Clerk Assistant and Director General, who made it clear that we can not only write into our Standing Orders provisions requiring super-majorities, but entrench a—[Interruption.] I am rather distressed that the Minister is not even listening to what I am saying. We can entrench a Standing Order with its own super-majority so that it could be removed only by a super-majority, if that is what the House chose to do. The whole basis of the Government’s advice remains contested by the Clerks. The basis of the Bill—that this has to be done through statute—also remains contested by the Clerks.
I doubt that we will win the vote in the Committee this afternoon, but the Minister has failed to give a full response or to acknowledge any of the points that have been made. His subsection refers to a Speaker’s “certificate under this section”, which is very unspecific. At least the amendment states
“Any certificate of the Speaker of the House of Commons given under this section shall be conclusive for all purposes”.
That word “any” and the reference to the Speaker make it clear that whatever the Speaker issues is uncontested, rather than leave it open to the courts to determine whether the certificate presented by the Speaker complies with the legislation. I am afraid that the Minister has not satisfied me and I do not think that he has satisfied a great many of my colleagues on the Government Benches or in the official Opposition. I want to press the amendment to a vote.
Question put, That the amendment be made.
The Committee proceeded to a Division.
Tessa Munt (Wells) (LD)
On a point of order, Mr Evans. At lunchtime today I was sitting in the Terrace cafeteria and, for the second time in a fortnight, I was unable to hear the Division bells at all. There was nothing to indicate that a vote was taking place. Can you facilitate Members’ ability to vote if they are sitting in that area, perhaps by asking the Badge Messengers to inform them that a vote is taking place while the problem is sorted out?
Fixed-term Parliaments Bill
Bernard Jenkin Excerpts(13 years, 12 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Cash
The right hon. Gentleman demonstrates why many people thought that he was one of the foremost leaders of the House of Commons. He understands the mechanics that lie behind such questions. Precisely what he has just said could easily happen. Indeed, many other things are likely to be conjured out of thin air by the wave of a magic wand of the kind that only Harry Potter seems able to use.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I cannot understand how Ministers can argue that the Bill takes power away from the Prime Minister and gives it to the House of Commons. In 1979, the intention of the provision would have been to prevent the House causing a general election. The Prime Minister would have been in the driving seat, with 14 days to cook up some kind of new deal to stay in power. How is that taking power away from the Prime Minister?
Mr Cash
I entirely agree with my hon. Friend. It is such a shame that more people are not here to hear some of the criticisms that are being made of the Bill. We are not criticising it because we want to be difficult or because we are the awkward squad; we are criticising it because it is a profound constitutional issue. The provision is intended to be permanent, not a will-o’-the-wisp measure that will last a few months, and it will induce permanent constitutional change—it is a constitutional revolution, but a silent one, as I said.
A majority of one is at least understandable and can be calculated. I referred to the German example. Their measure operates on the basis of those in the House itself when the vote is taken, which raises a series of questions about the manner in which the Government’s proposals would operate. If we have a provision that is based on a fixed number of seats, it will not matter at all whether people turn up. Why bother with a Parliament in those circumstances? What would be the point if it were simply a question of the number of seats? Who occupies them, what they think about things or whether they have a view to express would not matter. That is an outrageous proposition, and I cannot believe that my hon. Friend the Minister is prepared to subscribe to such arrant rubbish. The reference in the Bill to the number of seats carries an analogy to the Rump Parliament to extremes.
The proposal is based not on any constitutional principle but the expediency of propping up, if necessary, the “temporary alliance”, which is how the “Oxford English Dictionary” describes a coalition. The measure, for all I know, may run foul of the internal contradictions of putting two parties together that, in certain but not all respects, have entirely contrary views on matters of fundamental constitutional and political importance, such as the alternative vote, which a number of my hon. Friends and I voted against. We are Conservative, and we believe that the alternative vote is the wrong way to go. We believe in first past the post and in a simple majority, because they account for the individual conscience of hon. Members, and not merely the number of seats. Dare I even mention the European question, because that is also part and parcel of the shift in the fundamental balance of power away from this House?
The coalition agreement illustrates that point. At the heart of that arrangement, there are some destructive and some constructive proposals, and some are unworkable. For example, under the agreement, Liberal Democrats have a right or duty to abstain on important matters. The 55% rule proposal was abandoned not only because of its absurdity, but because of opposition to it. The reason for the two-thirds rule is that it will be easier for the Whips to fulfil their masters’ wishes. Their power would be imperilled if a motion were conditional merely on a majority of one. That is the crunch.
The principle of the majority of one proves my point, as the right hon. Member for Blackburn (Mr Straw) indicated in an intervention. I responded to him by referring to the 1979 Division, when there was a majority of one. I find no merit whatever in moving away from the virtues of a simple majority, although I doubt that the Leader of the Opposition, who signed amendment 4, would be so firmly enthusiastic for Margaret Thatcher’s victory in 1979. However, I repeat that I have not tabled that amendment for the sake of the wishes of the Opposition. I simply believe that we adhere to the simple majority.
Mr Cash
Indeed, but that was about the sense of outrage over what had been done. That could apply to a Budget, as my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) said, or to any other situation. It could have applied to Suez or, for example, the Iraq war. For all those reasons, the confidence motion, in whatever terms it is expressed, is just that: do those voting in the House of Commons at the time, by a majority of one, have a sufficient degree of confidence in the behaviour and policies of the Government?
Chris Bryant
Yes, indeed. This is just about the process and the fact that it has been the convention in every Committee stage in which I have been involved for Ministers to write to all members of the Committee, and, when the Committee is sitting on the Floor of the House, to all those who have taken part in the debate.
My point is that clause 2 has no electoral mandate. Clause 1 has some degree of mandate, in that we had proposed in our manifesto that there should be fixed-term Parliaments, and the Liberal Democrats had made a similar proposal. I do not believe that there is a mandate for a five-year fixed-term Parliament, as both political parties had previously said that they were in favour of four-year fixed-term Parliaments. Clause 2 has absolutely no mandate from the electorate. Indeed, the proposals in it run directly counter to those in the Conservative manifesto, and to what the Prime Minister said as Leader of the Opposition in relation to the reform of the power of Dissolution. He said that he would introduce legislation to ensure that, should there be a change of Prime Minister as a result of the party in power changing its leader, there would be a general election within six months, but that is not the proposal that we have before us today.
Chris Bryant
Of course I will give way to the lion of the right, as I believe he is now known.
Mr Jenkin
Lion, maybe. I should like to draw the hon. Gentleman’s attention to the fact that the parliamentary Conservative party gave no mandate to the leadership of our party for a fixed-term arrangement of any description. The parliamentary party was consulted about whether there should be a coalition, and whether there should be a commitment to a referendum on the alternative vote, but the question of a fixed-term Parliament was never mentioned. Nobody knew anything about it until it appeared in the coalition agreement.
Chris Bryant
The hon. Gentleman is absolutely right. That is true not only of his party but of the Liberal Democrats, who said that they were in favour of a fixed-term Parliament although there was no reference in their election material or manifesto, or in any of the speeches made by the now Deputy Prime Minister, to any provisions for determining when an election might be held or for introducing a super-majority. When their lordships consider this legislation, it is important that they bear in mind the fact that the conventions relating to matters that are adumbrated in a general election manifesto simply do not apply in this case. There is absolutely no electoral mandate for this provision.
The aetiology of clause 2 is pretty straightforward. It comes from the coalition agreement. I know that the hon. Member for Epping Forest is keen, for her own reasons of propriety, to stick to voting for proposals that are in the coalition agreement. However, she has complete freedom in relation to today’s amendments, because these provisions are not mentioned in the agreement. It states:
“We will establish five-year fixed-term Parliaments. We will put a binding motion before the House of Commons stating that the next general election will be held on the first Thursday of May 2015. Following this motion, we will legislate to make provision for fixed-term Parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour.”
I completely agree with the articles that were then written by several Members, the most impressive of which was probably that by the right hon. Member for Haltemprice and Howden (Mr Davis) and published in The Daily Telegraph. In it, he stated:
“The requirement for a 55 per cent majority to dissolve parliament, and thereby dismiss a government, dramatically reduces the ability of Parliament to hold the executive to account.”
If that was true of a 55% requirement, it is even more true of a 67% requirement. Moreover, that requirement would involve 67% of not only those who voted but of all the seats in the House, even those that were vacant at the time and also, presumably, those of the Deputy Speakers and the Speaker, who would presumably not be allowed to vote. Those seats would therefore automatically be included with those who had voted against holding an early general election.
There is absolutely no mandate for the provisions in clause 2. I believe that it will entrench the powers of the Executive, rather than releasing their grip on Parliament. An important point has been made by several hon. Members, not least my right hon. Friend the Member for Blackburn (Mr Straw), the former Home Secretary—I could list all his jobs as he has held almost every job in the Government apart from Prime Minister; perhaps that will come one day. They pointed out that the clause introduces a new super-majority, which is alien to the processes of this House. There has never been a super-majority provision. The provision is introduced by statute rather than through the Standing Orders, so again it is the Executive forcing their will on the House rather than the House taking this forward.
Parliamentary Voting System and Constituencies Bill
Bernard Jenkin Excerpts(14 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Walker
The Deputy Prime Minister is a man of great integrity. I recognise that this is his Bill, and once he has heard the force of my argument he will rush here and demand a rethink from his Front Benchers.
Speaking at the Institute for Government in January, the Deputy Prime Minister called for the House of Commons to be reduced to 500 and for the number of Ministers across both Houses to be cut to 73. The Government’s demands are much more moderate. They are talking about reducing the size of the House to 600, but if we reduce it to 600, following the Deputy Prime Minister’s logic, we should reduce the number of Ministers by 15. That would tally with his mathematics, but, as I said, my new clause is modest. I am not calling for a reduction in the number of Ministers by 15. I know that many Members are demanding that I do that, but I shall not hear it. I am simply demanding a reduction in the number of Ministers by eight.
Many people here have argued privately in the corridors that there is no link between the size of the House of Commons and the number of Ministers. That is total nonsense. We know that as far back as the Bill of Rights of 1689 this House expressed concerns about the Crown having a presence here in the form of Ministers. The 1701 Act of Settlement tried extremely hard to remove Ministers from this place, because the politicians of that time wondered how one could serve the Crown as well as one’s constituents. Unfortunately, that never saw the light of day because the Executive got their way in 1706. As recently as 1926, if someone became a Minister of the Crown, he was required, in between general election periods, to resign his seat so that his constituents could decide whether their Member of Parliament could serve two masters—the interests of the constituents and the interests of the Crown.
That is where I am coming from. I am arguing for a modest reduction in the number of Ministers. We have had enormous ministerial inflation since 1983. Margaret Thatcher—we all remember her, that great lady—had 81 Ministers to run this country in 1983. We now require 95. Is the world so much more complex? I say to those who argue that it is that since 1983 we have privatised a large number of previously Government-owned industries and we have allowed Scotland, Wales and Northern Ireland to have their own devolved Assemblies. The number of Ministers has still risen inexorably.
I do not want to try your patience, Mr Streeter, by straying off new clause 7 and talking about inflation in the number of Parliamentary Private Secretaries, but we are now seeing 50 PPSs adding to an already burgeoning payroll. Although these people are not even paid, they are called the payroll vote. As far back as the 1960s, one could be a PPS and vote against the Government without danger of losing that role, but that is not the case today. The civil service code of conduct says that a PPS is required always to support their Government.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I am mystified as to what the role of a PPS has to do with the civil service code.
Mr Walker
My hon. Friend is absolutely right to correct me. It is the ministerial code, which is similar to the civil service code.
Those on the Front Bench might well argue that they have made progress in reducing the cost of the ministerial payroll. They will argue—it is a bit of a red herring—that on taking the seals of office, Ministers took a 5% pay cut. In reality, they did not take a pay cut, because they went from being in opposition to being in government and took a 25% to 50% pay rise. It just was not as large a pay rise as it could have been.
The savings to the ministerial payroll are about £500,000, not an insignificant sum. Lord Turnbull said to the Public Administration Committee that the average cost of maintaining a Minister, with private offices, cars and private secretaries, is £500,000 per Minister. By reducing the ministerial payroll by eight in 2015, we will save the taxpayer a further £4 million. While we are at it, we might like to consider the 10 unpaid Ministers we have across the two Houses, because if we got rid of them we could save another £5 million. However, that is an argument for another time and another place.
Mr Streeter, you know better than anyone that we live in an age of austerity. Things are changing. We are dismissing senior permanent secretaries from across the civil service. We are removing chief executives of councils and their directors. We are attacking senior and middle management across the country, yet there is one group of senior management that is completely immune to these cuts and that is the ministerial corps. Yes, we are all in it together, but not quite if one is a Minister. I do not think that any good argument could be presented from those on the Front Bench for not reducing the ministerial head count.
I am an enormous fan of the coalition and the Prime Minister, and I think that the coalition is what the country needs at this time. Both the Prime Minister and the Deputy Prime Minister have talked about new politics, a new way of doing things and a new optimism. New clause 7 is the litmus test for new politics, because I do not understand how we can have new politics and oppose reducing the Government’s patronage at the same time. I hope that Front Benchers can respond to that point.
To colleagues who are, perhaps, being leaned on by the Whips, I say that this is our chance to take ownership of new politics, which cannot be driven by Front Benchers and the Executive because the Executive are all about taking and retaining power and extending the tentacles of patronage even further. We as Back Benchers will take ownership of new politics tonight; we will do the heavy lifting for the Executive. By going into the Lobby and supporting new clause 7, we will be able to look our constituents in the eye when we go for reselection after the boundary review or the general election and say, “I was different.” When they challenge us with that worn cliché, “You’re just the same as the rest of them. You’re only in it for yourself,” we can say, “You are wrong. I was one of those Members of Parliament in 2010 who voted to reduce the number of Ministers.”
I have spoken for too long. In conclusion, new clause 7 is the very essence of new politics. The House and my colleagues have the chance to do the right thing tonight and I hope that they take that chance, because they will be respected for it if they do.
Mr Jenkin
I rise briefly to congratulate my hon. Friend the Member for Broxbourne (Mr Walker) on the spirited and coherent way in which he moved his new clause. I should also like to congratulate my hon. Friend the Member for Richmond Park (Zac Goldsmith), who also made a coherent and spirited defence of the new clause.
It is not my intention to speak for very long. In fact, it had not been my intention to speak at all in this debate, partly because I am losing my voice, so this speech might not continue for long. In fact, it might be cut down in its prime. However, I have been watching the Deputy Leader of the House nodding at some interesting moments during this debate, when he seemed to be endorsing the past statements of his party’s leader. I am waiting with bated breath to see how he melds the previous position of his party’s leader with the present position of the Government.
While he is preparing his remarks, I hope that he will reflect on the fact that the very office of Deputy Leader of the House is, in itself, rather a modern invention. I think that it was invented during the previous Labour Government. I do not know whether it ever existed before—I look to my hon. Friend the Father of the House—because it had never been deemed necessary for there to be a deputy to the Leader—[Interruption.] The hon. Member for Rhondda (Chris Bryant) was the embodiment of the invention. The post reflected the desire of the Executive to create more jobs for the boys—if I may put it that way—than existed before.
There is a simple test that we need to apply to this Bill, and to new clause 7 in particular, which is: does it strengthen the House of Commons? It was axiomatic before the election, and in the aftermath of the expenses scandal, as the hon. Gentleman pointed out, that every party leader should speak in grand terms about the need to strengthen the accountability of Government and to strengthen the House of Commons. Can the Bill do that? It cannot, unless we reduce the number of Ministers pro rata to the reduction in the number of MPs. I should point out that my remarks are not some manic attack on the power of Government. There are plenty of ways in which Governments can appoint people to jobs in order to get things done. Indeed, I should say to the hon. Member for Foyle (Mark Durkan), who spoke just before me, that it is possible to appoint more Members from the other place. It is also possible to appoint more special advisers—and let us face it—we have a rash of special advisers in Government these days compared with what we used to have. There are all kinds of ways both of ensuring that there are ambassadors for the Government in office and people to implement the Government’s policy and political direction, and of ensuring that the Government remain accountable to the House.
Ministers do not need to be Members of the House in order to be accountable to it. It is worth reflecting on the fact that as we have grown the number of Ministers in this place, we have left Whips and even Parliamentary Private Secretaries to speak for the Government in the other place, because Governments are so interested in filling ministerial offices with Members of Parliament, to secure their influence in this place. However, if there were more Ministers in the other place, there is no reason why they should not be invited to the Bar of the House to answer questions. That reform is long overdue. There are plenty of alternatives.
I should like to reflect on the term “the new politics” that has crept into political parlance. I am not quite as old and wise as my noble Friend Lord Heseltine, who sat for many years in this place, and who I saw opining, at the very formation of the coalition, that there was no such thing as the new politics; there was only the old politics, and politics would always be the same. That is of course true, but if the new politics is going to mean an increase in the domination of the Executive in the House of Commons, that would seem to be the antithesis of what those who coined the phrase were seeking to convey.
In fact, politics is changing. When I was first elected in 1992 there was still quite a strong element of deference in the House of Commons towards authority and the Whips. Members who were first elected in the 1950s would have served in one or both of the world wars, and virtually every Member of Parliament at that time had done national service of one sort or another. That Edwardian deference has gone from today’s politics, however, and Governments will have to accept that the House of Commons is becoming more assertive. An example can be seen in the whole expenses debacle. I refuse to call it a scandal, because what the newspapers uncovered was much less a scandal in respect of individuals and much more a scandal in terms of the system that had developed, in which the press itself had connived. The outcome of the expenses debacle sent a message to everyone that it was time for Parliament to reassert its role, and it seemed that the party leaders took that message up. What really came through in that episode was how useless Parliament had become.
What is Parliament’s job? It is to ensure that the laws of this country are fit for purpose, to stand up for the liberty of the citizen and to control the supply of money to the Government. Looking at those three tests, we can see that the House has performed miserably over the past decade. More and more legislation, particularly secondary legislation, is passed that is unfit for purpose and not scrutinised properly. The House has completely failed to control the massive growth in public expenditure that has led to the deficit crisis that we now face, and as for protecting the liberties of the individual, I am afraid I think that most of our constituents would feel that the House has been found wanting.
If we are to improve the way in which we do our job, will we be helped if we allow the Government, of whichever party, to have patronage over and to give hope to a wider and wider group of Members, and to instil into the principle of politics in this House that the be-all and end-all is ministerial office? Would that be conducive to a more accountable system? We do not have the separation of powers in our system, but we nevertheless rely on a degree of separation between the Executive and the legislature. I submit that the new clause is exactly the signal about our determination to hold the Executive to account that the House needs to send not only to the Government of the day but to the people at large. We must send this signal that we take our jobs seriously and that we are not going to be seduced, cajoled or flattered into accepting the Executive agenda more and more.
I end with this point. My hon. Friend the Member for Broxbourne, who moved his new clause so ably, is a member of the Public Administration Committee, which produced the report “Too Many Ministers?” in the last Parliament. I am afraid that I have to inform the Government that we have already launched a new inquiry, asking “What do Ministers do?”. That might seem a cheeky question, but at this time when there are so many Ministers, we know from the revelations in various biographies that Parliamentary Under-Secretaries have jobs and activities created for them to keep them busy.
When it comes to the Foreign Office, I have no doubt that the hon. Member for Rhondda is right to say that we need ambassadors for Britain, representing both Parliament and Government, but I simply do not believe that to be true of all Departments. Do we need more Ministers to represent the Government in this House? It was suggested to our Committee that Whips speak for the Government in the other place, so why cannot Whips speak on behalf of the Government in this place? Why do they have to remain mute and silent here, as if they had no views of their own and no speaking purpose in a House of whose being speaking is the very essence?
Mr Christopher Chope (Christchurch) (Con)
Is my hon. Friend aware of the irony that his Committee is carrying out this inquiry, but the Government are using that fact as a reason why our hon. Friends should not vote against the Government position tonight—because it is all going to be sorted out in the future by my hon. Friend and his Committee? Can he put my hon. Friends right, and tell them that they need to be in the Aye Lobby for this new clause?
Mr Jenkin
I can put them right. As Chairman of that Committee, although I do not act as Chairman in this capacity, I will be in the Aye Lobby myself on new clause 7. As my hon. Friend the Member for Broxbourne said, it represents a very modest maintenance of the status quo. That is what this is about—checking an advance or a further incursion of the Executive into the House of Commons. It is a holding position, while my Committee completes its work.
Mr Heath
I think this has been an interesting and illuminating debate. I am grateful to the hon. Member for Broxbourne (Mr Walker) for tabling his new clause and for the way in which he spoke to it. I am also particularly grateful to the hon. Member for Harwich and North Essex (Mr Jenkin), the Chairman of the Public Administration Select Committee, not only for contributing to this evening’s debate but for his Committee’s work—and that of its predecessor, which, as he rightly said, published the first report.
We have heard from a number of Members of all parties, including from the Father of the House. The hon. Member for Louth and Horncastle (Sir Peter Tapsell) often gets criticised—or, perhaps, slightly cheesed—for his lapidary style, but I know from my experience over many years that he is well worth listening to on many issues. Although I do not agree with everything he says—I do not think he would expect me to—I always find listening to him a useful exercise.
The hon. Member for Na h-Eileanan an Iar (Mr MacNeil), who is not in his place at the moment, intervened earlier and sought to persuade the Committee that the Republic of Ireland is the epitome of prosperity, which I am not sure is an argument that holds great water. The hon. Member for Slough (Fiona Mactaggart), who is also not in her place, was moved to tell us why during the last Parliament she asked to be a Minister no longer.
The hon. Member for Rhondda (Chris Bryant) said repeatedly that the Government of whom he was a part were too slow to take on these issues. Too right they were! They never took on these issues one single bit; there was never the slightest attempt to reduce the size of government or to relax the grip of the Executive on Parliament. It is only since the present Government have been elected that we have been able to deal with some of these issues. He also said, in passing, that he was suspicious that Parliamentary Private Secretaries were not acquainted with the ministerial code. He is quite wrong on that; of course they are—they are given the ministerial code to sign on taking up their positions. That is as it should be. The hon. Gentleman will have to look at the websites himself.
Mr Heath
I will let the hon. Gentleman into a secret: I am not the Prime Minister. It is the Prime Minister who makes appointments. I am simply saying that I do not think we would improve the present position by putting more Ministers in the House of Lords. In the last Parliament, members of the Cabinet—Secretaries of State in charge of Departments—were in the House of Lords, and we had no way of holding them to account. That was an affront to this elected House, and I am pleased that we have put it right.
Let me explain why I cannot support the new clause, although I have a degree of sympathy with the view of the hon. Member for Broxbourne (Mr Walker).
Mr Heath
I said that it was undesirable, and I believe that it is undesirable. I said that in the last Parliament. I called for Secretaries of State in another place to be brought before this House for questioning, because I think it is wrong for Members of the House of Commons not to have access to those who lead Departments. That remains my position, and I am not going to change it.
Strategic Defence and Security Review
Bernard Jenkin Excerpts(14 years, 1 month ago)
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The Prime Minister
I know the hon. Lady has a very strong constituency interest in this matter, and perhaps I can get back to her in greater detail on the refit programme. I can tell her that HMS Ocean will be going into refit. Clearly, as we have explained, the number of frigates and destroyers combined will be coming down to 19. The decision on the future of HMS Ocean and HMS Illustrious will have to be taken on the basis of what is the best platform for the use of helicopters. The best thing is for us, as we go through the details, to tell her more about what I think will be fundamentally good news for both Plymouth and Portsmouth, because we want to keep both naval bases—and keep them busy. The communities there are hugely supportive of our armed forces and give them tremendous backing. I have never believed that it is right to put all our defence eggs into a very small number of bases, as it were, so Portsmouth, Plymouth and Faslane will of course all go ahead.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I commend my right hon. Friend’s determination to adopt a more thoughtful and strategic approach. Has he had a chance to read the Public Administration Committee’s report “Who does UK National Strategy?”, in which the outgoing Chief of the Defence Staff commented that the UK had
“lost an institutionalised capacity for, and culture of, strategic thought”?
Does my right hon. Friend agree that we need a more co-ordinated approach to strategic thinking across Whitehall, and will he adopt the report’s recommendations?
The Prime Minister
I absolutely agree with my hon. Friend. That was one of the reasons why yesterday we published the national security strategy separately—so that people could see that the defence review flows from strategic thinking about Britain’s place in the world, about the threats we face and about how we can bring all of the Government together to try to deal with that. The National Security Council and the national security adviser, Peter Ricketts—I pay tribute to him and his team for their work—are working well at bringing the Government together to interrogate the experts and really think about what our strategy should be and what that means for the decisions we have to take. That is much better than a two-way battle between the Ministry of Defence and the Treasury.
Parliamentary Voting System and Constituencies Bill
Bernard Jenkin Excerpts(14 years, 1 month ago)
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Chris Bryant
The amendment deals with the simple issue of the role of the Electoral Commission in relation to the referendum next year. While the Bill provides that the commission should take whatever steps it thinks appropriate to promote public awareness of the referendum and how to vote in it, we believe that that should be subject to the agreement of the Speaker’s Committee on the Electoral Commission. I realise that hon. Members may think that that is some strange committee with no proper function and is just a bunch of MPs who want to interfere in the process, but in fact it is laid down in the 2000 Act. It has three ex-officio members—the Deputy Prime Minister, the Speaker and the Chairman of the Political and Constitutional Reform Committee. In addition, a Minister is appointed to the committee by the Prime Minister, in this case the Minister for Housing and Local Government, as well as five other Members—the hon. Member for East Surrey (Mr Gyimah), my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman), the hon. Member for Belfast East (Naomi Long), my hon. Friend the Member for Houghton and Sunderland South (Bridget Phillipson) and the hon. Member for South West Devon (Mr Streeter). One might call that an eclectic mix, but it represents a broad swathe of opinion on the issue of the referendum as well as many other electoral matters.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
Does the hon. Gentleman know which of those members might vote yes in the referendum and which might uphold the current system?
Chris Bryant
No, I have not got the faintest idea. I just know that two or even three of them are definite noes. I do not know about the others. My point is that this body is used to considering electoral matters without seeking partisan advantage and to trying to promote a level playing field for all in electoral administration.
The committee has two specific roles, only one of which is material here. The first is in relation to the appointment of commissioners, which is why earlier last week we saw the appointment of new commissioners. In addition, it has a role in analysing the five-year financial plans produced by the Electoral Commission. It is the only point at which Parliament has a say in the financial plans of the commission and one of the issues that will have to be borne in mind is how much should be spent on the information that the commission provides to voters about the referendum. The Speaker’s Committee on the Electoral Commission is therefore an important body to keep informed. The committee also provides an opportunity for a Minister to be directly involved, albeit only as one of the six Members on the committee.
The Electoral Commission has said that it knows that a considerable amount of information will have to be provided. The hon. Member for Harwich and North Essex (Mr Jenkin) knows that I do not share his views on the alternative vote. None the less, we share the view that the information provided should be fair, and it is important that we lay the details down in statute as far as possible to ensure that that happens. The way in which information is presented can inadvertently—and sometimes advertently—be biased. The commission said in its report on a referendum on the UK parliamentary voting system earlier this year:
“Without background information about the different voting systems, many participants in our research found the proposed question problematic.”
We might think that that is because the question is problematic, but the report continues:
“This was because they had almost no understanding of the ‘Alternative Vote’ (AV) system”—
and before the hon. Gentleman gets too excited—
“and very mixed understanding of ‘First Past the Post’ (FPTP).”
The last election in which I took part was last Thursday in Treherbert in the Rhondda where we had a council by-election. It was beautifully precise, because we had just two candidates—a Labour candidate and a Plaid Cymru one. It might appear that that would be easy for people to understand—a straight choice between A and B and one cross in the relevant box. However, there were several spoiled ballot papers because normally people get two votes in local elections in that two-member ward. Some people had voted for both candidates, presumably because they thought the by-election was like the normal elections. I am sure that hon. Members are dying to know who won the by-election. Labour seized the seat from Plaid Cymru with a swing of 10%, so Councillor Luke Bouchard is now the youngest councillor in Wales.
The important point is that voters do not fully understand the current system. They certainly do not understand the alternative vote system very well. However, in order for the Electoral Commission to provide information so that people can have a full understanding, we need a system that includes not only the commission but the weathered eye of some elected politicians, through the Speaker’s committee, which is unbiased and has no particular axe to grind.
I note that the hon. Gentleman and several others have tabled an amendment that would solve the same problem slightly differently. I suggest that the two are not mutually exclusive, although it might be a case of belt and braces. I am keen to hear what he has to say, if he succeeds in catching your eye, Mr Gale. I hope that the Government will want to involve the Speaker’s committee in this process and accept the amendment.
Mr Jenkin
Amendment 247 is in my name and of several colleagues, including the hon. Member for Middlesbrough (Sir Stuart Bell). I do not think that that represents any slight on the amendment tabled by the hon. Member for Rhondda (Chris Bryant); it is just that I asked the hon. Member for Middlesbrough to table it with me.
The hon. Member for Rhondda has made the reason behind his amendment clear, and the principal purpose of our amendment is the same. The Electoral Commission has invited us to give it the enormous responsibility of sending out information, during a referendum, about the contentious matter on which voters will be asked to give an opinion. As the hon. Gentleman said, these are difficult issues to understand. Even the current voting system, to be called first past the post in the ballot question, is difficult for some voters to understand. That underlines the no campaign’s view that it should have been called the current system. As a more neutral description, that might have been better and more intelligible. These are subjective judgments, but the commission decided not to accept that suggestion. It also declined to accept our suggestion that the new system should be called the optional preferential voting system with instant run-off, which explains in more detail what it actually is. We are therefore left with some difficulty in explaining the systems.
Amendment 247 would provide that unless both the yes and the no campaigns are satisfied that the information being sent out is completely neutral, they should have the right of veto over it. That would be completely fair and equal, and would provide a safety valve, because there would be no possibility of information going out about which one campaign could cry foul.
Mark Durkan (Foyle) (SDLP)
I have reservations about amendment 136. I fully understand the spirit in which the hon. Member for Rhondda (Chris Bryant) argued for it, but I have concerns about requiring the agreement of the Speaker’s committee on the Electoral Commission. Would the committee have to agree on absolutely every bit of material, therefore having some sort of editorial control, with only their imprimatur and nihil obstat determining what goes? I am not sure that it would not put the committee in a potentially invidious position—indeed, hon. Members have already asked questions about what side of the argument the committee members are on. The safeguard that the amendment is trying to achieve might turn out to be more complicated and hazardous.
I prefer amendment 136 to amendment 247, however, because the latter would basically create not a difficult position for MPs sitting on the Speaker’s Committee, but an absolute veto by one campaign on the work of the Electoral Commission and indeed on the seemly and properly informed conduct of the entire referendum. To give each campaign an outright veto would be to give it too tempting an opportunity. Some of us come from territories where we are used to vetoes lying around the place, and they do not usually stay there as unused ornaments; they end up being used deliberately, effectively and destructively.
Mr Jenkin
The effect of my amendment is clear. It states:
“The Electoral Commission shall not issue any explanatory documents to persons entitled to vote in the referendum”
unless agreed by both campaigns. It is very clear. It would not prevent the Electoral Commission from carrying out its other work.
Mark Durkan
We are being told that no explanatory documents will be issued unless they have been approved by both campaigns. It could easily be in the interest of one campaign—for instance, a campaign saying, “We probably should not even be having the referendum anyway because it is not necessary”—simply to object. In such an event, no explanatory information could be issued, and then the conduct of the referendum would be seriously and fundamentally compromised.
Some of us have experience of seeing how referendums have been conducted in other jurisdictions.
Mr Jenkin
The yes and no campaigns will receive considerable public funds and will have a free mailshot. Each will explain the voting systems in its own way. That is a perfectly fair way of conducting a referendum. After all, at general elections, we do not ask an authority to explain the issues of the day to the British people; we let the British people make up their minds on the basis of what the political parties send out. That is the conventional way of running a referendum.
Mark Durkan
I will give the example of referendums conducted in the south of Ireland. The Referendum Commission has clearly gained some experience in how to manage the dissemination of information and how to deal with the various claims that emerge from different campaigns—and it has had to do that authoritatively and effectively. There are lessons to be learned from the Irish experience about how this referendum can be conducted. I would have a difficulty with putting absolute control over the Electoral Commission’s role in the hands of either campaign.
Mr Jenkin
Let me apprise my right hon. Friend of an example of just such a problem. I have seen the Electoral Commission asked whether it is true that a candidate has to get 50% of the vote to win under the alternative vote system. The Electoral Commission immediately replied that this was a subjective judgment and that it would not get dragged into the evaluation of the two systems, but how then could it describe the system? It is either correct that a candidate needs more than 50% of the votes to win or it is not, so what is the Electoral Commission going to say? Will it decline to inform the voters about the very nature of the system in order to avoid controversy? If so, it might as well not put out any information at all.
Mr Redwood
I agree, and the conclusion is just that: the Electoral Commission should not put out information because that might drag it into the debate. The whole purpose of testing a proposition in a referendum or testing candidates in an election is to allow a free exchange of ideas and views. The two campaigns will, of course, be heavily involved, but there will also be lots of other people, institutions, media representatives and newspapers claiming to be doing impartial analysis on the claims of the two sides. Some of them might even do something that gets close to being an impartial analysis of the claims of the two sides, but they will all discover, as we saw in the last general election, that having something that everybody regards as impartial is an impossibility.
The issue behind this debate may be for the political classes only. I do not think that it is the subject of much discussion in the pubs, clubs or schools of Wokingham, for example, but it is of passionate interest to the political classes. A large number of people now earn their living out of politics one way or another, and they will be watching every word and every sign, in every part of the referendum campaign, to see how it is going and whether it is fair.
I do not think that the Minister is about to give ground on the non-Government amendments in this group. I would therefore urge him to say to the Electoral Commission, ex cathedra, from his pulpit, “We love you dearly. We wish you to be impartial. Hesitate, hesitate and hesitate again before you start to make statements about this highly charged territory.” While there may be 40 million people out there who are not much moved by this subject, there are another 1 million or 2 million who are very moved by it—whose livelihoods depend on it or who are preoccupied by it—who will be watching every word. It will be extremely difficult to come up with that perfect, impartial prose that even describes the system, let alone avoids the obvious pitfall of wandering into opinion. There is nothing more annoying in the heat of an election campaign than for someone to claim impartiality, but then to say something critical of one’s own position, which is what happened in the last general election.
Mr Harper
If the right hon. Gentleman would allow me to make further progress in my response to what I thought were the wise words of my right hon. Friend the Member for Wokingham (Mr Redwood), he would understand the terms of the advice that I would put to the Electoral Commission, which I suspect it would work out for itself, too. I suspect that it would not be tempted down that path. If the right hon. Gentleman does not think that I have answered his question, he is welcome to intervene again.
Amendment 136, moved by the hon. Member for Rhondda (Chris Bryant), deals with the Speaker’s Committee, but I am not at all convinced that that is the right body to be involved here. The Electoral Commission has already presented its plans for public awareness and costs to the Speaker’s Committee, supplying it with information, but given that the Speaker’s Committee is made up of politicians, I am not entirely certain that it is the most appropriate body. When it was said earlier that its views about this particular campaign were not clear, it reinforced the point that it might not be the right body to be involved. Given that two members of the Committee are Ministers, it is difficult to see whether they would be acting in their position as Ministers—the Deputy Prime Minister is an ex officio member, although the Government are neutral about the result of the referendum—or as protagonists. The two Ministers involved have their own views, so I fear that this might drag the Speaker’s Committee into the debate. Hon. Members have already warned of the dangers of bringing the Electoral Commission directly into the debate, so this provides an example of a similar danger.
Mr Jenkin
My hon. Friend is making a very strong argument for the Electoral Commission not to put out any information at all. If the Speaker’s Committee is fit to appoint the Electoral Commission, surely it is a fit body to hold it to account. Otherwise, to whom is the Electoral Commission accountable?
Mr Harper
If my hon. Friend waits until I have developed my remarks further, he might be a little happier.
If we are to allow the Electoral Commission to publish some information—I shall come on to the details later—we must allow it to be flexible, so putting in these extra hurdles is not sensible. The commission already produces lots of guidance—admittedly not perhaps in such charged circumstances—without any sort of approval, and it works fairly well.
Amendment 247 starts from the laudable assumption that we want to ensure that information provided to voters in the referendum—and most certainly if it is provided by the Electoral Commission—is neutral and fair. I fear, however, that it might have an unforeseen consequence by preventing the Electoral Commission from publishing information or giving the yes and no sides a veto in the 28 days before votes are cast. It might encourage the Electoral Commission to publish information earlier than that, which I do not think would be particularly helpful for voters—effectively stopping the publication of information during what voters would perceive as the campaign period. The hon. Member for Foyle (Mark Durkan) made a good point when he said that giving either player on the pitch an effective veto might be a recipe for grief and mischief.
I know that my hon. Friend the Member for Harwich and North Essex has anticipated my next argument and tried to clear it out of the way. When asked about the neutrality of the Electoral Commission last week, he said that he had “the highest respect” for Jenny Watson and that
“because of her previous position, she will want to be seen to be as impartial as possible”.—[Official Report, 12 October 2010; Vol. 516, c. 204.]
I think that is correct.
I strongly suspect that when the commission considers what factual information it is going to publish in practice, it will come to the same conclusion as the Government. Before Second Reading, the Government published a short factsheet, which we placed in the Library. It was on the first-past-the-post system—for want of a better description—and the alternative vote. Although the two Ministers involved have a difference of opinion on the outcome of the referendum, we were very clear that the Government document needed to be neutral. The amount of information that can be produced on the two voting systems—the current one and the proposed new system—without being drawn into their merits, is very limited. That is why we ended up producing a factual and neutral document, not a very comprehensive one, which we have placed in the Library. I suspect that the Electoral Commission will reach the same conclusion. My right hon. Friend the Member for Wokingham thus made a good point, and, as I say, I believe that the commission will reach the same conclusion.
That is not to say that there is no value in producing the information. Research done earlier into the question that should be asked revealed that a number of members of the public did not understand terms such as “House of Commons” and “Parliament”—even basic information like that. We might consider providing such information unnecessary, but it might be of great use to enable voters to make a decision. A great deal of information that is neutral and factual can help to get voters up to a level that we would take for granted, without trespassing on the merits of the arguments behind the two voting systems.
Mr Harper
I will give a brief answer, as Mr Gale will tell me off if I stray too far from the amendments and we will debate this issue again when we get to clause 7. Someone can be elected. One has to have 50% of the votes remaining in the count at that stage. Under our system, which is optional preferential, voters do not have to express a preference. If a significant number do not express a preference for candidates, someone could get elected without having 50% of the votes cast in the first place, but they do have to have 50% of those remaining in the count. That is a very simple, straightforward, factual answer, and I am sure that my hon. Friend will probe me on it further when we debate clause 7 and the mechanics of the system that we plan to introduce.