Business of the House

Debate between Charlie Elphicke and Jacob Rees-Mogg

Tuesday 22nd October 2019 Commons Chamber

[Charlie Elphicke (Dover) (Ind)]

Is my right hon. Friend not struck by the irony that those who voted against the programme motion in the hope of cancelling Brexit have in fact made a no-deal departure, which they supposedly fear, much more likely? Does he agree that a departure with a deal is more preferable? Will he introduce a programme motion tomorrow so that the House can sit for as long as it takes—all through the night, if necessary? Even if the Labour party wants to knock off early, we should be able to carry on, make sure that we get the Bill through, get out and get on with other stuff.

[Mr Rees-Mogg]

I am grateful to my hon. Friend for the point he raises, but we have already gone through this. We would need a further programme motion if we were to sit through the night. It seems unlikely that it would be possible to get a programme motion through when we have failed to get today’s programme motion through.

Business of the House

Debate between Charlie Elphicke and Jacob Rees-Mogg

Monday 21st October 2019 Commons Chamber

[Charlie Elphicke (Dover) (Ind)]

Does the Leader of the House agree that it is a bit rich for Members of this House who voted for the emergency procedure to be used for the surrender Bill to pass it in a day to now say, “Oh, but we need more time to discuss this deal.”? They like it when it suits them, and they do not like it when it does not. They are trying to subvert democracy and the democratic will of the British people.

[Mr Rees-Mogg]

My hon. Friend asks, “Is it a bit rich?” It is as rich as Jersey cream.

Finance (No. 2) Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Tuesday 1st April 2014 Commons Chamber

[Charlie Elphicke]

Let us talk about those good times. Before the downturn in the ’90s, the national debt was at least 10 points lower than before the latest crisis.

[Jacob Rees-Mogg]

Surely the hon. Member for North Durham (Mr Jones) is forgetting that the success of the Labour party in the first two years came because it followed Conservative spending plans.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Tuesday 10th September 2013 Commons Chamber

[Jacob Rees-Mogg]

The hon. Lady is right that there is a free post, but parties are not publicly funded. They receive no cash for the free post; it is done without any cash transfer to parties, and they have no control of the money that comes to them. My point that parties are not funded by the state is right. There is Short money and Cranborne money, which I mentioned, but that is specifically for parliamentary activities, not campaigning.

[Charlie Elphicke (Dover) (Con)]

My hon. Friend is making a powerful speech. Is there a larger purpose here? Public funds—taxpayers’ money—are given to organisations to execute a social purpose. For that money to be used to interfere in elections is nothing short of an abuse of taxpayers’ money and trust.

[Jacob Rees-Mogg]

My hon. Friend is absolutely right.

--- Later in debate ---

[Jacob Rees-Mogg]

Charities should be able to campaign for their fundamental beliefs, but lobbying the Government with the Government’s money—taxpayers’ money—is a suspect activity. We do not pay our taxes to allow bodies to oppose or support the Government.

[Charlie Elphicke]

Will my hon. Friend confirm that, under amendment 27, companies such as Atos, which does considerable work for the Government, would be prohibited from indulging in campaigning?

[Jacob Rees-Mogg]

I would be shocked if Atos wanted to campaign. The idea that it should become a third party and campaign in seats is a monstrosity. Atos would be covered if it wanted to register as a third party, which is highly unlikely.

--- Later in debate ---

[Charlie Elphicke]

I thank the hon. Lady for that clarification. I think it is important that we represent our constituents. Following my direct responses to the 38 Degrees e-mails, many constituents replied and said that they saw that as a matter of great concern and that they agreed and had considerable sympathy with the position I had taken. I must say that I was surprised by that support. Having been forthright in my response, I did not expect to find much support from that particular quarter. I think that there is a message for Opposition Members to take away and consider, just as there is for Government Members. State-funded activists are engaged in direct lobbying of politicians and indirect lobbying of the public using taxpayers’ money, and I think that blurs the distinction between private and public action.

I also think that we all have a trust to uphold, in relation to the votes of supply and the impost we put on our constituents for the funding of Government and public money, to ensure that it is spent in a way that is targeted at particular social purposes and need. My concern is that if taxpayers’ money then finds its way back into arguing for more money to be spent on particular things, or indeed on the election of particular candidates or parties at an election, that is an abuse of the public trust that we are sent here to represent.

[Jacob Rees-Mogg]

I am grateful to my hon. Friend for his support. I wonder whether he thinks that it would be a good idea to table a tougher amendment on Report to ensure that lobbying money cannot be spent when it is public funds.

[Charlie Elphicke]

I am grateful to my hon. Friend for making a case that I have made in the past. Government Front Benchers are listening and I hope they will consider introducing tougher restrictions on the abuse of public funds, so that all of us who care passionately about taxpayer value and reducing taxes, cutting the deficit further and faster, and reining in waste and excessive public spending are able to ensure that our constituents get better value for money from the Government and that their money is not misspent, but spent on the social purposes for which this House votes.

Human Rights Act 1998 (Repeal and Substitution) Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Friday 1st March 2013 Commons Chamber

[Charlie Elphicke]

That is a fair point. The European Court in Strasbourg does make an awful lot of rulings that right-thinking British people would consider entirely perverse. What I have sought to do with the settlement proposed in the Bill is take the European convention out of the UK legal system so that it is not directly effective, and need not be applied by UK judges day in, day out. As my hon. Friend says, if we remain party to the convention, on a case-by-case basis—I think that there are about 10 cases a year—there would potentially be rulings against the UK, and the Executive would then have to consider putting provisions before Parliament to change that, or not. My hon. Friend is right to draw attention to the potential risks, difficulties and challenges.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I want to raise the question not of the perversity but of the legitimacy of the rulings of the European Court of Human Rights. They have no support from the democracy of the United Kingdom. Allowing foreign judges to rule on our laws lacks legitimacy, even if their judgments are sensible.

[Charlie Elphicke]

I have a great deal of sympathy with that view, and, as my hon. Friend will have noted from the polling evidence that I quoted, a large majority of the British people have an enormous amount of sympathy with it, too. I hope that, if the Bill is given a Second Reading and if my hon. Friend becomes a member of the Bill Committee, he will table an amendment to clarify the provision in question, and we can engage in a wider debate on it.

In March 2011, a YouGov poll found that 51% felt that human rights laws were bad for British justice. Significantly, there was strong support for rights being dependent on the conduct of the individual asserting them, and 64% rejected the motion that everyone should be entitled to have their human rights protected even if they had broken the law themselves. That is a key aspect of what I said earlier about the objective versus the subjective test. As my hon. Friend the Member for Christchurch (Mr Chope) pointed out, British people have an instinctive feeling about the issue of coming to court with clean hands. The principles of equity run deep in the psyche of the British people.

Seventy-five per cent. of those polled believed that the Human Rights Act

“is used too widely to create rights it was never intended to protect”.

That too is a key issue, which people often talk about. In February 2012, a YouGov poll found increased concern, with 72% agreeing that

“human rights have become a charter for criminals and the undeserving.”

Just 16% disagreed with that proposition.

The polling evidence highlights the extent to which the British people reject the UK’s current human rights settlement. People clearly and consistently do not feel that the right balance has been struck to restore public trust in our basic rights. The UK’s human rights settlement ought to be revised, and that is why I tabled the Bill.

It is worth reflecting on the UK’s history in relation to human rights. We have a long and proud history of protecting the rights of individuals against the Government. The development of those rights—which we now call “human rights”—stretches back at least 800 years, and includes Magna Carta and the 1689 Bill of Rights. Various settlements and Acts have changed the constitution over a long period. Many people think that we do not have a written constitution, but of course we do: it exists in many different documents.

The magic thing about our constitution is that, because it exists in those various documents and because it was not set in stone 200 years ago like the American constitution, it is easy to change and easy to keep up to date. It is easy for our constitution to bend like a reed when the breath of fresh air of social change sweeps across the country, and I think that it works well.

[Charlie Elphicke]

My hon. Friend is right. The European convention is a document that was drafted 50 years ago following the tyranny of the totalitarian regimes in the second world war and the blood that they spilt across Europe. We ought to have a document that is living. One of the biggest problems with the convention is that it is not a living document, but a document that was set in stone 50 years ago, and it has not kept up with or changed with our times. Europe has moved on, but the European convention has not moved on with it. One of the key problems with the whole idea of having written constitutions is that they cannot change over time. The Americans spend an inordinate amount of their time arguing about whether they have the right to bear arms, which strikes us as absurd. We in the UK can easily change things.

[Jacob Rees-Mogg]

I thought I should remind my hon. Friend that the right to bear arms is in our own Bill of Rights, where there is the right to bear arms because of the need to maintain a Protestant militia—which fortunately has gone out of fashion in more modern times.

[Charlie Elphicke]

My hon. Friend is absolutely right: when something goes out of fashion in the UK, we change things and move on. We are able to adapt. The Americans copied that provision from our provisions, but are now stuck with having continual arguments about it, whereas for us it is a fragment of our history.

Individuals do not just have basic rights; they also have basic responsibilities that reflect what is required for a civilised society to function. That is at the heart of the social contract that underpins our way of life. It has long been understood that the nature of the social contract will change over time: what is acceptable in one age is not acceptable in another, and vice versa. It is in the nature of the UK’s legal and constitutional structure that changes in the social contract can be accommodated peacefully and effectively. As the UK has no formal codified constitution, laws can be passed by this Parliament, as required, to keep pace with social change. That has worked well for us. We last had a revolution some centuries ago, whereas across Europe and elsewhere revolutions are commonplace. Our constitution can, and does, adapt; it keeps up with the times.

We have drawn on that heritage very helpfully in respect of the European convention on human rights, which we signed in 1950. We played a significant role in drafting it. It developed in the wake of the tyranny and inhumanity that characterised the fascist powers defeated in the second world war, and with an eye on the Stalinist terror behind the iron curtain. The purpose was to hold states to a range of basic human rights, to prevent the repugnant treatment of individuals in some parts of Europe in the 1930s and 1940s from ever happening again, but the UK resisted joining the European Court, the institution that would adjudicate on individual’s claims that the state had violated their convention rights.

The UK was concerned about the potential for unintended consequences and loss of national autonomy. Different nations have different cultures and diverse social norms that are unsuited to a one-size-fits-all approach. That is why so often our discussions about human rights go hand in hand with a wider discussion about Europe and how we can shape our way of life and our own unique British identity within the context of a larger organisation across the channel.

For a long time the binding jurisdiction of the Strasbourg-based Court of Human Rights and the ability of individuals to file claims that their convention rights had been breached was optional for convention states. It was only in 1994 that the UK agreed to the jurisdiction of the Court, including in cases brought by individuals, becoming a compulsory part of the convention. Even then, our agreement was reluctant.

The convention, including the rulings of the European Court of Human Rights, in cases to which the UK is a party is binding on the UK as a matter of international law. As discussed earlier, whether we should remain part of the convention is a wider question, which I have not sought to answer directly through the Bill, although I hope that when my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) serves on the Committee scrutinising it, he may wish to explore the issue further. Under the UK’s dualist approach, however, treaty provisions do not have force in the UK unless Parliament legislates to incorporate them, and it was long felt that the incorporation of the convention into UK law was unnecessary as it already protected the convention rights.

We then had the Human Rights Act 1998. Soon after winning power in 1997, the Labour party introduced the legislation that eventually became the Human Rights Act. Effectively, it copied and pasted into UK law the text of the convention rights that the UK has accepted internationally. Former Prime Minister Tony Blair wrote in the White Paper that this

“will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our society. And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy.”

It will be recalled that putting human rights at the forefront of our foreign policy did not last too long and the whole ethical foreign policy idea was soon ditched, but the Human Rights Act has lived on a little longer.

The main provisions of the Human Rights Act came into force in October 2000. Most of the convention rights are very sensible—the right to life, prohibition of torture, prohibition of slavery, the right to liberty, the right to a fair trial. In fact we would not disagree at all with most of the convention. The issue has always been how these rights are interpreted by the European Court of Human Rights, which is a judicially activist court.

Difficulties have also been caused by section 2 of the Human Rights Act, which inserts the human rights code and the Strasbourg Court’s rulings directly into our legal system, so British judges have to apply those provisions in Britain whether they like it or not. My Bill would revise that section. Section 2 requires British courts, when applying convention rights, to take into account any judgment of the European Court of Human Rights that they believe is relevant. UK courts have taken this to mean they should follow clear and consistent jurisprudence from the Strasbourg Court unless there are exceptional reasons not to do so.

Real mischief—even evil—is done by section 3 of the Human Rights Act, which obliges British courts, along with everyone else, to interpret and apply UK legislation in a way that is compatible with the convention rights in the Human Rights Act, so far as that is possible to do. When introducing the Human Rights Bill, the then Government was clear that section 3 would introduce a radical change. They said:

“The Bill provides for legislation—both Acts of Parliament and secondary legislation—to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.

This ‘rule of construction’ is to apply to past as well as to future legislation. To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretations. They will be able to build a new body of case-law, taking into account the Convention rights.”

In other words, the Human Rights Act semi-entrenched the convention into our legal system and our constitution so that both past and future provisions of law have to be read in line with the convention or the rulings of the European Court. More than that, if the legislation is not totally incompatible, violence can be done to the language. That is a real threat to parliamentary sovereignty, as my hon. Friend the Member for High Peak (Andrew Bingham) made very clear.

[Jacob Rees-Mogg]

This is an incredibly important point, because this is a constitutional extension of the most extraordinary kind. It makes the Human Rights Act superior legislation, a concept previously unknown in the British constitution, arguably with the exception of the European Communities Act 1972. Having superior legislation is a direct threat to our constitution and the ability of Parliament to bind its successors.

[Charlie Elphicke]

I entirely agree. In my view, this is the worst part of the Human Rights Act, which is why one of the key provisions in my Bill is to change that.

--- Later in debate ---

[Charlie Elphicke]

That intervention takes us to the key issue of determining whether a person should be able to stand on their UK rights. British courts must take into account all the facts and circumstances of the case, including the conduct of the person seeking to assert the UK right and his adherence to the responsibilities set out in article 23, in considering whether it is fair, equitable and in the interests of justice for such a UK right to be applied to the question at hand. It is effectively the heart of the subjective test to which my hon. Friend the Member for Christchurch referred earlier as coming to equity with clean hands.

An important point that goes to the heart of the Bill is that rights must be matched by responsibilities. If someone has not discharged their responsibilities, that is taken into account when they seek to stand on a right. In other words, if they have broken their half of the social contract, that will go against them when they seek to assert the part of the social contract or rights on which they want to rely. It is right that judges and the courts should be able to consider the case in the round to determine whether a person can avail themselves of those rights. As I have said, someone should not be able to use the right to family life to stay on the run. That is a basic part of the subjective test.

The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights. Those broader considerations should include whether a person seeking a basic right has kept his part of the social bargain and the social contract. That is incredibly important. If we talk to a person in the street about the social contract, they will say, “Well, there are two halves, aren’t there? There are rights, but there are also obligations”—or responsibilities, as I have called them. That recognises the duality of the social contract that lies at the heart of our society.

When it comes to interpreting UK rights, the Bill removes the provision of the Human Rights Act that requires British courts, when interpreting and applying the rights in the Bill, to take into account rulings of the European Court of Human Rights. Instead, the Bill makes it clear that UK courts may take account of judgments from a wide range of sources, including but not limited to the Strasbourg Court, with courts of common law jurisdictions getting top billing, and rightly so, because we are a common law country, and there is a common law world out there that we helped to establish in the days of our empire, which now proceeds with common law jurisprudence. Australia, New Zealand, the United States and Canada are all countries that have common law foundations and have given much thought to many of the issues that often come before our courts. Why would we not look to them first, before we looked at the civil law jurisdictions of Europe? I think that is the right balance for us to have.

The Bill removes the provision of section 3 of the HRA, which requires UK courts to interpret and apply legislation in compliance with human rights so far as is possible. Instead, the courts are directed to give legislation its ordinary and natural meaning. Where the meaning is ambiguous, the courts would typically presume that a possible meaning that complies with UK rights is intended. In that way, we would give primacy back to Parliament and restore the confidence of the British people that Parliament decides. We would have a uniquely British code of rights that is right for this country.

[Jacob Rees-Mogg]

Surely we should give confidence to the British people that the British people decide—they, through their Parliament, rather than Parliament in isolation.

[Charlie Elphicke]

I entirely agree. I am happy to be corrected by my hon. Friend about the emphasis. He is right. We are not here to represent the Government to our constituents. We are here to represent our constituents to the Government and to Parliament, and to ensure that their will is carried through. That is a central part of what my Bill is all about.

We need to restore the sovereignty of Parliament when it comes to human rights. We need to restore confidence in human rights with a uniquely British settlement that the British people will respect and trust, with the right balance of rights and responsibilities, and also with the right balance to ensure that Acts of Parliament are not just turned over by the courts, but that courts apply Acts of Parliament passed by the lawmakers, which is the way it should be. The horse should always go before the cart, not the other way around. We need the right settlement for the UK—a settlement that people can trust and have confidence in, so that they will feel once again that it is a British settlement for the British people, and that strikes the right balance and has the right balance in fairness, which, to my mind, is the cornerstone of the British psyche and the British way of life.

Finance Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Monday 2nd July 2012 Commons Chamber

[Charlie Elphicke]

As I said, I think the Laffer curve is an interesting principle, but I prefer empirical curves and empirical results from experiments. We know from the ’80s that if the rate is cut, it increases the take. For me, the uncertainty is not about whether reducing the rate from 50p to 45p will cost the Exchequer £100 million, but about whether it will add £100 million or £200 million to the Exchequer as fewer people seek to avoid tax.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Does my hon. Friend think that cutting the rate to 40p or even 35p might have raised even more money? Would not that be a very good thing for the Government to do?

[Charlie Elphicke]

My hon. Friend tempts me, as ever. He knows that my view is that one should reduce the rate and clamp down heavily on tax avoidance. I respect the fact that he does not always share my views on tackling tax avoidance—I recall that in Committee he said that I was going to paint the cliffs of Dover red, so passionate was I that people should pay their fair share—but I do think that if we have lower, simpler taxes and a simple tax system, it will incentivise investment and encourage more economic growth. The argument for reducing the higher rate of tax, which was only a temporary increase in the first place—the Labour party seems to have forgotten that—was to get more investment in our economy and to encourage the entrepreneurs and wealth creators.

Finance (No. 4) Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Monday 16th April 2012 Commons Chamber

[Charlie Elphicke]

I am grateful to my hon. Friend for anticipating the next part of my speech, but let me first give some more examples.

Google revenues in the UK were £2.15 billion in 2010. Estimated UK profit was £700 million. How much tax should have been paid? Google should have paid around £180 million, but how much did it pay? It declared a loss of £22 million.

[Jacob Rees-Mogg]

Did those companies pay the tax required by law?

[Charlie Elphicke]

My hon. Friend makes a fair point. The companies would answer that they did pay the tax required by law, but my response is like the one given by their lordships in, I believe, the Aberdeen case some years ago. Their lordships said that a man is under no obligation to allow the taxman to put a greater shovel in his stores than he must by law, but my argument is that tax law should allow the taxman to put his shovel into stores so that people pay a fair and just share of taxation.

[Jacob Rees-Mogg]

Can we be clear that the problem is the law and not the avoidance—the avoidance is legal, but the law may be wrong?

[Charlie Elphicke]

The law requires change. The avoidance might be legal, but HMRC is understood to be investigating a number of those companies. Because of taxpayer confidentiality, we will not know for sure until such time as a case comes before a court.

Let us take the case of eBay. Tax of some £50 million should have been paid on UK profits before avoidance, but eBay actually paid £3.4 million. Facebook should have paid £14 million, but actually paid £400,000. That level of avoidance is unacceptable. This poisoned legacy—the total failure to reform our tax system—left to us by the previous Labour Government is unacceptable. I might, if I am generous, put it down to their obsession with pursuing the prawn cocktail circuit for so many years, in the fear that if they took on business and ensured that it paid its fair share of tax, they would be less friendly with business and have less credibility.

--- Later in debate ---

[Jacob Rees-Mogg]

That is rather contorted logic. Saying that one aspect of the activities of a big and thriving business has a slightly higher rate of tax and so the business will suddenly not be able to give any money to charity is a leap in logic so great that it can be ignored in this case. However, I did wish to discuss the point about charitable giving, because that is one of the biggest sticks that has been used to bash this Finance Bill and the Budget with.

[Charlie Elphicke]

Does my hon. Friend agree that it is odd that fish and chips should be subject to VAT but pasties should not? The sausage and egg McMuffin that I sometimes enjoy is subject to VAT, as is my Domino’s pizza and the Indian takeaway I enjoy from the Milaad Tandoori in Deal, but sausage rolls are not. Is that situation not unfair, as it subsidises pasties and sausage rolls?

[Jacob Rees-Mogg]

I agree with my hon. Friend that VAT is a tax of immense complexity. However, it is an essential tax for the revenue-raising that this country needs and it has to include in it things that all of us like and would rather not be taxed. Equally, it will include things that some of us do not like, do not particularly wish to eat and do not mind how heavily taxed they are. If I am put the question, I would choose a sausage roll over a pasty, but I know that others have different views.

I also want to mention briefly the freezing of the threshold about which the right hon. Member for Stirling (Mrs McGuire) spoke interestingly. Again, the Government were right. Because the big step is being taken to raise thresholds altogether, it makes absolute sense, at no cash cost to any current pensioner, to freeze this level and allow it to even out so that we have one threshold. Every time we have variance in tax levels, be they rates or thresholds, we simply employ more people at Her Majesty’s Revenue and Customs, we have a more expensive cost of collection and we fail to achieve the objective of simplicity across the tax system.

This has been a great Budget and I wish to finish by speaking briefly about this terrible question of tax avoidance. I agreed with my hon. Friend the Member for Dover (Charlie Elphicke) when he cited that notable judge with his phrase about allowing the taxman to take the biggest shovel. If people avoid tax, that is legal because we, as Parliament, have allowed them to do so. The following clauses in part 1 of the Bill allow legal tax avoidance: 13, 14, 15, 16, 19, 20, 38, 39, 40 and 44. All those clauses in the first 50 allow tax avoidance of which the Government approve. We will all approve of some of them, because they allow MPs £30,000 tax free when they leave Parliament, allow cars that must be made secure because people are at risk to be tax free and allow people in particular situations and circumstances to pay less tax than they would in normal circumstances. The enterprise initiatives under clauses 38, 39 and 40 allow investment that the Government want to encourage. Those are all examples of tax avoidance that is liked by the Government.

We have to be fair to taxpayers. We can only expect them to follow the law of the land as it is written—the black letter law of the land. We cannot expect taxpayers to look at their affairs and say that the Government might like them, if they are feeling kind, to pay more tax than they are being asked for. None of us has an obligation to do that and it is wrong and dangerous to elide tax avoidance and tax evasion.

EU Criminal Policy

Debate between Charlie Elphicke and Jacob Rees-Mogg

Wednesday 25th January 2012 Commons Chamber

[Charlie Elphicke]

My hon. Friend helps me to move to my next point. The policy applies not just to market abuse. It also applies to

“terrorism, trafficking in human beings, sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.”

The list is packaged in the manner of “Do you like hospitals?” or “Do you eat food to live?”. It has been put together with breathtaking cynicism and in a way that would make even a push poller blush. We know what this is really about. It is about starting with something that everyone can accept so that they say, “Oh, yes, that’s a good idea,”. That puts the principle in place before things are moved forward. The document says, “We then want to move forward into other areas,” as my hon. Friend the Member for Esher and Walton just said.

Let us look at the issue of market abuse. Why can we not have the market abuse rules in the criminal law of our own nation? Why do we need to have minimum standards across European law if we do not necessarily want to opt in? We are being told that there is no such thing as—

[Jacob Rees-Mogg]

Will my hon. Friend give way?

[Charlie Elphicke]

In a moment.

We are being told that it is a misdescription to talk about a Euro-crime, but on page 9 the document states, under the heading, “What is the possible content of EU minimum rules on criminal law?”:

“The definition of the offences…Regarding sanctions, EU criminal law can require Member States to take effective, proportionate…criminal sanctions for a specific conduct.”

So if we touch on the issue of definition of the offence, and add on criminal sanctions, there is a risk that what we are actually talking about is, in effect, or could be seen as, a form of Euro-crime. I hasten to add that I do not necessarily regard that as a bad idea.

[Jacob Rees-Mogg]

If we were to have this co-recognition of crimes and action, would it not make more sense to do it with New York rather than with Brussels, because there is much more international financial trading in New York and London than there is in Europe?

[Charlie Elphicke]

That is a very fair point.

European Union Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Tuesday 8th March 2011 Commons Chamber

[Jacob Rees-Mogg]

I thank my hon. Friend for his intervention, but I am afraid that he entirely misses the point. In framing the new clause I have been working within the confines of our unwritten constitution, using the elements and protections that are already there, and extending them to the Bill. I absolutely accept that it is an irony of our constitution, as it already exists, that the protection against a Parliament lengthening its own life is an unelected Chamber a few yards down the way. However, that is the situation in our constitution, and it is one that has been enormously effective for 100 years.

[Charlie Elphicke]

Does my hon. Friend not agree that his argument would have more force and credibility if the sunlight of democracy shone over the other end of this building?

--- Later in debate ---

[Jacob Rees-Mogg]

I so wish that the hon. Gentleman, who is a most distinguished Eurosceptic, were right, but unfortunately the judges have taken that power to themselves. I return to what Lord Justice Laws said in his judgment on the metric martyrs case:

“Ordinary statutes may be impliedly repealed. Constitutional statutes may not.”

The judges have set up for themselves two different types of Act. It seems to me that we should claim that power back for the democratically elected Chamber of Parliament, and say that when we think an Act is of significant constitutional importance, what we will do is not entrench it—that is against the spirit of our constitution—but give it a modest protection by saying that it can be repealed only with the full consent of both Houses. The great advantage of that, for those of us who remember what happened prior to 1911, is that it would require a Government to win a general election—to go back to the people—before they could get something through the House of Lords, if the House of Lords said no. That happened in 1911, with the reforms to the House of Lords, and in 1832, with the Great Reform Bill. That provision has been an historic and traditional way of protecting our democratic rights—one that, oddly, involves the undemocratic Chamber—and that is why I think it would improve the standing of this Bill. It would protect the democratic rights of the British people and deal with the constitutional situation as it is—as the judges have developed it—rather than the constitutional system as the hon. Gentleman and I might wish it to be.

[Charlie Elphicke]

It is not only an incredible privilege and honour to listen to the superb eloquence of my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), but an even greater privilege and honour to follow him. Nevertheless, on this occasion I do not follow him in the sense of agreeing with the new clause that he is propounding. I put it to him in an intervention that it was ironic that he was seeking to use the unelected Chamber as the guardian of the people’s democracy. His answer was, “Well, look at the preamble to the 1911 Act.” I was reminded of the dictum of St Augustine of Hippo, who, as I am sure he knows only too well, said, “Make me pure, Lord—but not yet.”

[Charlie Elphicke]

In one moment.

I do not think that it is an excuse to say that because the House of Lords is partly reformed, we can give it a role as the guardian of our democracy pending the completion of that reform. Given that we have been racing towards the reform set out in the preamble to the 1911 Act for 100 years, it may take another 100 years to complete it—and given the way things carry on in this place, I suspect that we will indeed be waiting for 100 years to come.

[Jacob Rees-Mogg]

I thank my hon. Friend for giving way, but I just wonder whether he thinks the House of Lords has done a bad job since 1911 in the one area in which it is exempt from the 1911 Act—that is, in defending the right of the British people to have an election at least every five years?

[Charlie Elphicke]

I do not decry the role of the House of Lords, the excellence of their lordships, the work that they do, their courage or the passion with which they advance their cases. Indeed, it is often said that the debates held in their lordships’ House are far more informed, considered, interesting and informative than our debates in this House. Having been in this place and not that place, I cannot compare the two. Nevertheless, it is a dangerous principle to say, “Let’s include a provision in the Parliament Act to say that the House of Lords should be not only the guardian of five-year Parliaments but the guardian of this Bill, to protect it from being altered.”

I would have much more faith in the proposal if reform of the House of Lords had been completed—something that I hope will come to pass. One of the problems that I have with the House of Lords is not the people in it or their mental ability—many of them are excellent people and their mental ability is far superior to mine—but my concern that they do not hold a democratic mandate. It is an important principle that where we have representatives in our legislature, they should have a mandate from the people. I guess it is because I am a Lincolnian politician—I believe in government for the people, by the people, of the people—that I believe that the sunshine of democracy should permeate our entire legislature, and not just this House. I admit to some radicalism in my thinking on such matters, but I believe it is important that all our politicians should be elected and have a democratic mandate.

European Union Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Monday 24th January 2011 Commons Chamber

[Charlie Elphicke]

My hon. Friend makes a fair point, so let me to clarify my position. We will hopefully have an Act of Parliament that will state that there will be referendums in the case of matters that are of significance. A Minister might then come along and say that he does not think that a matter is significant. An individual will be able to go to the courts to seek a judicial review, saying that they think that the matter is significant on objective criteria. The court will then rule on that ministerial decision. That has to be right.

[Jacob Rees-Mogg]

What exactly will the courts do on a judicial review? Will they say that the Minister has not followed the correct process in coming to his decision, or will they try to overturn his decision? My hon. Friend is a lawyer, so I would be grateful for his explanation.

[Charlie Elphicke]

I believe that they would refer the decision back to the Minister to take into account relevant considerations, which would prevent a perversity. For example, if a Minister were to say that joining the euro was not significant, and if there were no other checks and balances in the Bill, an individual might decide that the matter was very significant and seek a judicial review. The courts would then tell the Minister that that was a perverse and an unreasonable decision.

Lawful Industrial Action (Minor Errors) Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Friday 22nd October 2010 Commons Chamber

[Charlie Elphicke]

I agree with my hon. Friend, who makes a powerful point. The Bill is highly technical and seeks to change things that seem technical, but it has the support of no major party in the House. The Bill is also highly controversial in that it seeks to extend the right to strike, but in reality would extend only uncertainty and the getting of money by our legal friends—I used to be one, I regret to confess. We should not proceed in that way.

As a member of the new intake, I was driven to be here today at the request of several constituents, who wrote to me. One letter stated:

“John McDonnell’s Lawful Industrial Action (Minor Errors) Bill will have its Second Reading in the House of Commons on 22 October and I urge you to attend Parliament to ensure this takes place.

The Bill has been introduced in response to a raft of recent cases where courts have ruled”

as we have heard, and I will revert to that shortly. The letter goes on:

“These cases have meant British law now imposes fetters on unions in relation to ballots which are unprecedented in Europe”.

That piqued my interest. I thought that I had to respond to my constituent because, unlike Members of Parliament in former times, I believe in writing back to my constituents and taking an interest in that in which they wish me to take an interest. I am nothing if not a servant of my constituents.

I therefore read the Bill and the explanatory notes. Paragraph 6 of the explanatory notes, which, I believe, the hon. Member for Hayes and Harlington wrote, states:

“A number of recent judicial decisions have revealed a degree of uncertainty on the scope and application of section 232B—for example, in the meaning of ‘accidental’ in subsection (1)(b). The cases have also highlighted, among other things, that the section does not apply to errors, however minor, in the giving of notice under section 226A or 234A. It remains unclear where the burden of proof lies in the event of a dispute as to whether an error involves loss of the protection of section 219.”

Yet, as we have heard in the debate, the Bill creates a new uncertainty. Those provisions of trade union law have been in place for the past two decades and more, and they are well understood by the courts and the legal system.

Will introducing the new test of “substantial compliance” help the unions? I do not think so. It will help create uncertainty and it will help lawyers, but it will not help the trade unions. I say that as someone who is broadly a supporter of trade unions and their legitimate right to use their economic power to withdraw their labour if that is the collective democratic will. As a supporter in principle of the right to strike, I think that the Bill is wrong because it creates a new uncertainty where certainty had been garnered over time. As a supporter of trade unions, I think that the measure’s aim is wrongful; as a supporter of employers, I do not believe that their time should be taken up in instructing lawyers and coping with new uncertainty. They need some certainly for their business planning.

Is the Bill necessary? Paragraph 7 of the explanatory notes states:

“In May 2010 an interim injunction was granted by McCombe J in British Airways plc v. UNITE the Union on the basis of alleged failure to comply with the provisions of section 231 of the 1992 Act regarding information about the result of a ballot. The Court of Appeal… reversed that decision.”

It threw out the injunction. The explanatory notes continue:

“Smith LJ stated that ‘it appears to me very likely that the judge at trial would hold that there had been substantial compliance’”.

The explanatory notes cite a case as the mischief that necessitated the Bill, when it actually proves the opposite. Paragraph 7 goes on to say that in paragraph 149 of the judgment, Lord Justice Smith

“observed: ‘I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot’… However, the other two members of the Court reached their decision on different grounds.”

The hon. Gentleman’s case is that a mysterious uncertainty remains over the effect of insubstantial errors on the operation of the ballot and notice provisions, but I think there is no such uncertainty. It seems to me that the Court of Appeal ruled fairly and squarely in favour of discharging that injunction. The mischief cited as a reason for introducing the Bill seems, when one gives it close examination and reads it with some degree of care, not to be a mischief at all.

[Jacob Rees-Mogg]

I would be extremely grateful if my hon. Friend, as a lawyer, explained to us whether the Court of Appeal’s decision is precedent-setting for future judgments.

[Charlie Elphicke]

My hon. Friend is absolutely right. Court of Appeal decisions, by our system of precedent, bind future decisions of that court and all lower courts. As I am sure he knows, only the Supreme Court can change and overrule a precedent. That is highly unlikely, and highly unusual in cases such as BA v. Unite.

--- Later in debate ---

[Charlie Elphicke]

My hon. Friend asks a fair question. Would it be okay to have substantial compliance in electoral law? I have received letters from the Electoral Commission threatening all manner of prosecution if I do not comply completely with absolutely everything. Should politicians and campaigners only “substantially comply”? Must an employer substantially comply when it comes to dismissing a member of staff? I do not think so. That is not how employment law works. The rules on compliance are strict, and rightly so.

[Jacob Rees-Mogg]

It is extremely generous of my hon. Friend to give way once again. The concept of substantial compliance is desperately worrying, because if in a Division of the House we had had only to be substantially compliant on an 80:20 basis, the result could almost always be reversed.

[Charlie Elphicke]

I thank my hon. Friend. He makes a fair point. There are many cases in which there should be full and proper compliance—for instance, in an investigation by an employer into staff misconduct. An employer seeking to dismiss a member of staff should comply fully with all the procedures under employment law and employment practices, and likewise a trade union wanting to strike should be fully compliant with the procedures for all the notifications and other regulations that go with it. That is the right way to do things. It is not good enough to say, “Employers’ behaviour has to be perfect”—and politicians nowadays, we learn belatedly, have to be perfect, or at least try to do the right thing most of the time—“but it is okay for trade unions broadly to do what they like and not to comply with anything.” That seems to be the thrust of the argument put by the hon. Member for Hayes and Harlington.

To return to my central point, the hon. Gentleman knows that his argument will never have the support of Government Members. He might one day garner the support of the Labour party, but it will never have our support. I enjoin him to reconsider whether he really wants to put this Bill to the House, given that there are so many uncontroversial Bills that we could, and should, be discussing and putting to the House on which there is broad agreement. He should withdraw it on the grounds that it is wholly inappropriate for a controversial private Member’s Bill to be put to the House in this way, killing a whole load of other business. He knows that we have no option or choice, because of our philosophy and viewpoint, other than to oppose the Bill. Even the Labour party leadership takes the view that the Bill should not be supported. I therefore invite him to consider withdrawing the Bill.

Finance (No. 2) Bill

Debate between Charlie Elphicke and Jacob Rees-Mogg

Monday 11th October 2010 Commons Chamber

[Jacob Rees-Mogg (North East Somerset) (Con)]

I congratulate my hon. Friend the Member for Skipton and Ripon (Julian Smith) on a speech that was excellently delivered and every word of which I agreed with. It was a fine maiden speech and a pleasure to listen to.

I also welcome the hon. Member for Nottingham East (Chris Leslie) to his new position. His speeches are in a somewhat different category, in that I always enjoy them but never agree with them. It is nevertheless a pleasure to see him in his place as his contributions in earlier debates were all listened to with bated breath, not least as we waited to intervene on some telling point.

This is a good and worthy Bill that is, perhaps, typical of the workmanlike approach that the coalition Government are taking to the difficult matters at hand to ensure that government is done fairly, justly and properly. In that context, it is interesting to look at the issue that was raised by the shadow Chief Secretary about the morality of taxation and whether it is moral, in one sense or another, to avoid taxation. We should be careful about eliding “avoid” and “evade”. The two are clearly different things, and this Bill exemplifies why that is so.

The Bill will relieve the taxpayer of burdens that Parliament probably never intended to place on them. For example, did we really want to have a special taxation for merchant seamen who are within the European economic area, as against those who are British subjects? Or was it an accidental result of historical legislation that meant that EEA citizens were caught in a way that the British subjects were not? As it happens, it is right and proper that Parliament should legislate to take people out of a tax that is misplaced, and it is equally right and proper that Parliament should legislate when it wants to bring people into a tax that it has not legislated for in the past.

The famous exponent of this was, of course, Lord Tomlin. In 1936, in a case brought by the Inland Revenue commissioners against the Duke of Westminster, Lord Tomlin said:

“Every man is entitled if he can to arrange his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be. If he succeeds in ordering them so as to secure that result, then, however unappreciative the Commissioners of Inland Revenue or his fellow taxpayers may be of his ingenuity, he cannot be compelled to pay an increased tax”.

That is why it is so important that we have these detailed pieces of legislation coming through, because when we look at the length of a cigarette, which is dealt with in clause 23, and whether it should be 3 inches or 4 inches—the measurements are all in centimetres, but being British, I shall stick to inches—and therefore be taxed differently, is that an issue of great, high morals, that should be referred to the College of Cardinals for debate, to decide which is one and which is the other? Or is it, in fact, a detailed point of law that is quite rightly passed by this House, so that taxpayers will know exactly where they stand? If we take an aircraft that weighs more than 8 tonnes—I shall not convert that into hundredweight, but I am sure that some will want to—should it be specially subject to value added tax, or should it not? Again, it seems quite clear to me that that is an appropriate matter for detailed legislation. The taxpayer who follows the letter of the law is never doing anything either wrong or immoral, and people who seek to try to confuse the two at seaside party conference are making a great error and doing a great unfairness to the British subject who is doing his best in an immensely complex area.

There is one other thing from this Bill that I would like to note, which is that clauses 5, 6, 14, 18, 19, 20, 21, 22 and 23 are, in whole or in part, requirements of the European Union. I mention that so that this House notes that we are perhaps not quite as free as we think we are to set our own tax rates, and that there is creeping Europeanisation. I see my hon. Friend the Member for Dover (Charlie Elphicke) is in his place. He is, in his port, at the forefront of our protection from creeping Europeanisation coming across our shores—this creeping Europeanisation that makes up almost a third of the Bill.

[Charlie Elphicke]

I thank my hon. Friend for his generous comments about our desire to buy our port. As far as Europe is concerned, does he not agree that it would be better if we were more masters and captains in the ships of our national destiny?

[Jacob Rees-Mogg]

That is put in an appropriately Nelsonian way. Of course we should sail the ship of state independently. It is important that so much of our domestic law is, in fact, coming from Europe, including our tax law, because that is the one thing that many people thought was broadly exempt from the interference of—