Repeal of the Fixed-term Parliaments Act 2011

Bernard Jenkin Excerpts

Thursday 23rd October 2014 Commons Chamber

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I realise I am craving the indulgence of the House. I would not normally seek to intervene in a debate when I was unable to attend the opening speeches. I understand, however, that the main protagonists have yet to speak, so I will use this brief opportunity to give my pennyworth in the hope that they may each be able to reply to one or two of the points I will make.

I have been listening to the debate, but I wonder if I could take the House back, as my hon. Friend the Member for Stone (Sir William Cash) did, to the beginning and to when the coalition was being formed. When it was formed, I remember it was announced that there were going to be some constitutional changes, including this one. We were told that we were ushering in a new era of the new politics that was going to transform the people’s perception of how we conduct ourselves in this place. It was going to show the parties re-engaging with the enthusiasm of the voters and that, as a consequence, this would be a much happier country. I remember having a conversation with a Minister on the stairs going up to the Committee Corridor. He said to me that politics, after five years of the coalition, would be unrecognisable—that is what he said. If we ask voters today what they think about how politics looks today compared with four years ago, I think they would say that it is all too recognisable.

The Fixed-term Parliaments Act, as my hon. Friend the Member for Stone described—I understand he has had to leave the Chamber in a rush because he is attending to other duties in the House—has turned this place in upon itself even more than it was before. We are even less focused on what the voters think because we have given ourselves tenure. We have given ourselves security. We have given ourselves a fixed-term lease that cannot be challenged. And there is the idea that this was done as some selfless and noble act! I am amazed that the hon. Member for Birmingham, Yardley (John Hemming) —I am afraid he is not in his place at the moment—should keep raising the question of how the Prime Minister might exercise his power with regard to partisan considerations. Well, perish the thought that any Prime Minister would ever do anything with partisan considerations in mind! I look back at previous Prime Ministers and think to myself: did Gordon Brown ever act in a partisan manner? No, no, never! Did Sir John Major or Tony Blair ever act in a partisan manner? No, no! The Fixed-term Parliaments Act was obviously yet another selfless Act introduced by a Prime Minister, with no party considerations involved! I think we are being asked to stretch our imaginations a little too far.

The Fixed-term Parliaments Act is one of the most partisan and self-interested Acts of Parliament that has ever been put on the statute book. It did not just provide MPs with tenure; it provided the coalition Government with tenure. It was providing the coalition with security; it was providing them with a five-year guaranteed supply of money from the taxpayer for their Administration. It was self-interested on the part of the Conservative Ministers who wanted to give themselves tenure. It was self-interested on the part of the Liberal Democrats to give themselves tenure not only in this coalition but in a future hung Parliament to guarantee that the only option would be another five-year coalition in which they, the smallest party, would once again have influence disproportionate to the number of votes they received. Even I missed the point about why the Labour party was so happy to give tenure to the coalition. The Labour party knew it was in a mess. It had a deeply unpopular ex-Prime Minister who had just been thrown out of office. It was going to have a long, protracted leadership election process. The last thing it wanted was another general election within six or 18 months. It was in no fit state to fight one, so of course it also supported the Act. This has created a politicians’ paradise. As my hon. Friend the Member for Stone said, it is designed to shut the British people out of the decision about what kind of Government they should be able to choose.

[Mr Syms]

My hon. Friend is making a powerful point. Equal votes in constituencies for fair representation is one of the fundamentals of politics, yet the boundary review was voted down for narrow party interests.

[Mr Jenkin]

I totally agree. The whole question of House of Lords reform was also being advanced for party political interests.

The hon. Member for Birmingham, Yardley asked who should have the power to dissolve Parliament. Should it be the Prime Minister? I put it to him that holding that power is part of the authority of being Prime Minister. As my hon. Friend the Member for Poole (Mr Syms) described it, part of the poisoned chalice of office is that the Prime Minister holds that power. By passing the Act, we have robbed the Prime Minister of part of that authority. We have robbed the Government of part of the authority of office that the Government live on a day-to-day basis, subject to the confidence of the House of Commons. That has been taken away and represents a fundamental change in our constitution.

The hon. Member for Nottingham North (Mr Allen) wants not only a written constitution and the continuation of fixed-term Parliaments, but the separation of powers. Basically, he wants an American constitution rather than a British constitution, but let us look at the American constitution. First, it is paralysed. It cannot get its deficit down and it cannot elect a strong Government. It can elect a President, but the separation of powers means that Congress can defeat everything the President wants to do. I do not think that that is a very good recipe. We do not want to follow that. In any case, the separation of powers is based on a misapprehension of how constitutions work. There is, in fact, no such thing as a separation of powers in any constitution. That was what Montesquieu thought he understood about the British constitution. The need for a separation of powers was the lesson that the American founding fathers thought they had learned from him about the British constitution. However, in the American constitution the President, the Executive, vetoes legislation and appoints the judiciary, and the legislature conducts pre-appointment hearings on the senior people in the judiciary. There is always overlap between the functions of government, and ours is a system of parliamentary government in which the Executive can hold office only with the permission of Parliament.

The Act has fundamentally altered the balance of power in our constitution. English votes for English laws, which many of us, including Labour Members, want, would require only a minor adjustment to Standing Orders and the running of the House, yet people are saying, “Oh, we’ll have to have a constitutional convention.” The Act made a far greater change but without a constitutional convention or any consultation; there was absolutely no debate. It was not even explained to the Conservative parliamentary party before we agreed to the coalition. It only became apparent that there would be a Fixed-term Parliaments Bill when the coalition agreement was published. Well, we have all learned our lesson, and the Conservative party will not be forming a coalition in the next Parliament until we have seen the coalition agreement in draft, and we will want to go through it line by line to ensure that such sleights of hand are not repeated.

[Mr Allen]

I hate to intrude on the private grief between the coalition partners, which this debate has become preoccupied with, but I cannot allow the hon. Gentleman to paint me as just a champion of the American constitution. Unlike him, I believe that the British people are perfectly capable of organising their own constitution, and they do not need him, other colleagues or the Conservative party to tell them what the constitution should look like. I would like them to work it out for themselves, and I have faith that they are perfectly capable of doing so.

[Mr Jenkin]

I am a little mystified by that intervention. If we are to make changes to our constitution, we need a mechanism by which to do it, and that will have to be done by elected representatives—it is called democracy; that is what we believe in—and so it will finish up here. If there was ever to be a codified constitution in this country, it would have to be debated and decided here, if perhaps subject to a referendum. I am mystified by the idea that in the estates, villages, towns and cities, the constitution is going to write itself, like some virtual programme on the internet. I don’t think so.

The Act is a fundamental and dangerous change to our constitution because it threatens the privileges of the House. I do not mean our special, personal privilege; I mean the protection of our freedom of speech from questioning by the courts. Under Article 9 of the Bill of Rights, what is said or done in Parliament cannot be questioned or impeached in any other place. However, the Act could result in the courts adjudicating on what kind of vote has taken place in Parliament, because it provides that the Speaker would have to write a certificate stating there had been a vote of no confidence or a two-thirds majority in favour of a Dissolution before the Prime Minister has the authority to go to the Queen and ask for one. It is possible that those votes could be disputed, and because it proceeds from an Act of Parliament, those disputes about who went through which Lobby and on what basis would end up being argued about in a court. This potentially runs a coach and horses through the very important question of parliamentary privilege.

[Sir Andrew Stunell (Hazel Grove) (LD)]

During the passage of the Act, did my hon. Friend speak or vote against the measure he now so roundly condemns?

[Mr Jenkin]

Yes, I did. On Second Reading, those of us in the other Lobby were staggered at how few we were—this was in the glowy aftermath of the announcement of the new politics—and I said, “You might feel lonely today, but don’t worry. One day, this whole Parliament will rue the day it passed this Act.” It will either be got rid of or we will find ourselves in the midst of the most almighty and intractable political crisis where a majority wants to dissolve Parliament and have a general election but we cannot do so. That is the prospect held out by the Act.

As my hon. Friend the Member for Stone said, we still do not really know what the Act means. It stipulates fixed-term Parliaments, but then it makes provision for shortening Parliaments. We have no idea what uncertainty it will create. The Act, passed to create political certainty, could become a source of the very uncertainty, instability and crisis it was intended to avoid. In that case, I hope Parliament would have the sense to take a Bill through this place and the other place as quickly as possible to clear this off the statute book. I commend the other place for its attempt to respect the wishes of the coalition to fix the term of this Parliament but to include a sunset or renewable clause so that it would have to be renewed at the beginning of each Parliament. At least that would have put the choice in the hands of the new Parliament. As it is, if we have another hung Parliament, we could find ourselves in that crisis sooner than we thought but with no sunset clause to get us out of the crisis.

--- Later in debate ---

[Stephen Twigg]

I will return to that issue, which relates directly to a point that the hon. Gentleman made. He referred to the review, and I welcome the fact that there will be a review, but I am certainly not persuaded by anything that I have heard today that it would make sense to do what the motion says and repeal the Act. I would like to set out the reasons why.

The hon. Member for Harwich and North Essex (Mr Jenkin) suggested that Labour had supported a fixed-term Parliament because of our predicament following the general election in 2010. The problem with that argument is that it was in our manifesto prior to the 2010 general election. Labour was committed to a fixed-term Parliament. Our view was to have a four-year fixed-term Parliament, and we were persuaded by our review of policy in preparing our manifesto of the democratic case for having a four-year fixed-term Parliament.

[Mr Jenkin]

The problem the hon. Gentleman has is that I was told by a member of his party’s Front-Bench team that they were delighted that we were putting the Act through, because it meant that Labour would not face an early election for which it was completely unprepared.

[Stephen Twigg]

The fact is that we fought an election in 2010 on a manifesto commitment to move to a fixed-term Parliament. That was a long overdue reform and I am delighted that my party committed to that in 2010.

--- Later in debate ---

[Mr Jenkin]

The hon. Gentleman is making a case for transferring the prerogative power to this House. What is the basis of the argument in favour of a two thirds majority requiring a Dissolution? Surely that is taking power away from the House and giving the Executive tenure?

[Stephen Twigg]

I do not accept that. However, if the motion were to say that we should review that aspect of the Act, it would have a stronger basis. The motion says that we should repeal the entire Act. I have not heard an argument that persuades me that we should do so.

--- Later in debate ---

[Stephen Twigg]

I simply do not accept that, because there is still the provision within the Act for confidence motions on the basis of a simple majority. We are only at the tail-end of the first Parliament in which the Act operates. It makes sense to say, “Let this run its course for this Parliament and the next and then have a review.” That is a sensible way of making constitutional reform.

[Mr Jenkin]

Will the hon. Gentleman give way?

[Stephen Twigg]

No, I am not going to give way again.

The previous position gave the Prime Minister and the party of the Prime Minister an enormous advantage. Opportunistically timed elections allow Governments to ask voters to assess their performance at the time most favourable for that party. Research shows very clearly that British Prime Ministers from both main parties have made extensive use of this power, to time elections for reasons of partisan advantage. Just under 60% of our post-war elections in this country have been called early by the Prime Minister of the day.

It is inevitable under that previous system that partisan advantage played a part in prime ministerial decisions about when to call an election. When a Government party has been confident of its re-election, the Prime Minister would usually go to the country after four years, rather than five. As I said in an intervention, Margaret Thatcher did so successfully in 1983 and 1987 and Tony Blair did the same in 2001 and 2005. Of course it does not always work, as was pointed out. Harold Wilson went to the country in 1970 expecting he would make use of his lead in the opinion polls and be re-elected, and he was not. Nevertheless, his intention was to go early because he thought he would win.

Parties that are less confident of their electoral position have tended to continue into their fifth year, leaving their reckoning with the electorate until the latest possible date. We saw that happen in 1997 and in 2010. It cannot be right that the governing body, of whatever party, has this massive in-built advantage.

Research from Oxford university suggests that strategically timed elections have allowed governing parties to achieve a bonus in elections over the past 70 years of about 6% in public support. The Fixed-term Parliaments Act creates a more equitable electoral playing field among the parties of Government and those of Opposition, which can only be healthy for our democracy.

It is now nearly 40 years since Lord Hailsham warned of the dangers of an “elected dictatorship”, with powers increasingly centralised with the Executive. Fixed-term Parliaments are one—only one—of the ways we can counteract that, by taking away the Prime Minister’s greatest chip: the ability to threaten a recalcitrant minority coalition partner, their own Back Benchers, or troublesome Opposition parties with the Dissolution of Parliament. That can be done at the behest not even of the party of Government, but of the leader of that party, the Prime Minister.

I agree with my hon. Friend the Member for Nottingham North that in the longer term there is the possibility— I do not put it any higher than that, as I am a realist—that fixed-term Parliaments can help contribute to a different style of politics. A greater responsibility of the Executive to Parliament demands a more pluralist style of governance. Some, like the hon. Member for Harwich and North Essex (Mr Jenkin), clearly do not like the idea of pluralism. The idea that not all the knowledge and wisdom lies in his own party is clearly alien to him, but I think there are many in the British public who actually quite like the idea that people can sit down together and work together in the national interest. People get very frustrated with politics when we fall into petty tribal battles, and prefer grown-up debate about the issues.

[Mr Jenkin]

Will the hon. Gentleman give way?

[Stephen Twigg]

No, as I have given way to the hon. Gentleman already.

More often in this place, we can work together to try to find more common ground. Fixed-term Parliaments will make that more likely.

There is a legitimate debate to be had on the right length of a fixed-term Parliament. As my hon. Friend the Member for Great Grimsby (Austin Mitchell) reminded us, in the 19th century the Chartists wanted annual elections and Parliaments; it was the one Chartist demand that was never implemented. Our manifesto in 2010 committed to four years, and, as my hon. Friend said, the length of time in New Zealand is three years. However, I think there is a good case—my hon. Friend the Member for Nottingham North made this case very powerfully—that a term of five years can have a stabilising effect on our politics, ensuring that Governments can make some important strategic and long-term decisions in the national interest, so I think it is right that we allow the five-year fixed-term Parliament to bed in. We can review it after two Parliaments, as the legislation allows, but it is far too early for us to consider repeal of the legislation.