Fixed-term Parliaments Bill

Jacob Rees-Mogg Excerpts

Monday 13th September 2010 Commons Chamber

[Mr Straw]

Oh, she is—okay. I shall ensure that the Prime Minister is made aware of her views. Obviously, this is her job application for the position of Secretary of State for Scotland, as she hails from there. I am certainly in favour of abolishing one tier of government where there is two-tier local government, which does not work. Thanks to a wise Conservative decision in 1995, Blackburn and Darwen have greatly benefited from being outwith the clutches of Lancashire county council and the two-tier system. However, that is not Conservative party policy, nor is it in the Bill.

On Prorogation, as my right hon. Friend the Member for Knowsley (Mr Howarth) has pointed out, clause 4(1) expressly states:

“This Act does not affect Her Majesty’s power to prorogue Parliament.”

Hon. and right hon. Members on both sides might not particularly have considered this, but it is perfectly possible for a Prime Minister who faces the prospect of a defeat on a motion of no confidence and who does not want an early general election, which would otherwise arise on a simple majority, to seek a Prorogation of the House. That is not idle speculation, because that is exactly what happened in 2008 in Canada.

In Canada, there are fixed terms, by law, of four years, but there are also procedures for early elections, as all fixed-term Parliaments have, if a Government lose confidence. The crisis in Canada arose because there had been an agreed all-party deal on substantially enhanced state funding for the political parties in return for draconian controls on donations and spending. Stephen Harper, the Prime Minister, in justifying all that against an austerity budget, decided to abandon the commitment and arbitrarily and unilaterally to reduce the amounts to be given to the other parties and his opponents. They cried foul and there was a crisis. When there was about to be a motion of no confidence against him, which almost certainly would have been won, he went to the Governor-General, in the seat of Her Majesty, and got a Prorogation so that Parliament would be suspended for quite a long time. The Prorogation was accepted and he subsequently sought, but was not successful, a further Prorogation. Given that the Bill is making significant changes, clause 4(1) has to be changed to ensure that the Bill does affect the right of Her Majesty to prorogue the House.

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

Will the right hon. Gentleman confirm that the ability to prorogue would also be useful to a Prime Minister who wanted an early general election? They could prorogue the House for a fortnight, preventing an alternative Government from being formed and leading straight to a general election.

[Mr Straw]

The hon. Gentleman is absolutely right. People say that such things will never happen, but I am sure that Stephen Harper is an honourable man—as honourable as any British Prime Minister. When senior politicians are up against it and are fighting for their life, they will clutch at any lawful provision, and it would be lawful to do that, so this issue must be considered.

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[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

Thank you, Madam Deputy Speaker, for giving me the opportunity to speak on this extremely important Bill. In the evidence that the Select Committee received, one of the distinguished experts who gave their opinion on the Bill described it as so fundamental that in other countries it would have required a constitutional amendment and possibly an entrenched majority of the House to pass.

It is a symptom of the lack of seriousness with which constitutional questions are sometimes treated in the House that the Bill is being rushed through with undignified haste, as appears to be the case, and I regret it. In the last Parliament I spent five years criticising the previous Administration and sometimes being a little harsh on the right hon. Member for Blackburn (Mr Straw) for the way in which he introduced constitutional Bills, but although he sometimes ignored the substance of consultation, he always preserved its appearance, and he did so with the charm and urbanity that is characteristic of him. In this case, we have had neither the substance nor the appearance. Every single constitutional expert who has given their opinion on the Bill has deplored the absence of consultation in which the House and those in the wider community have had an opportunity to participate.

I am troubled by the Bill. I do not understand why we should rush through the House so fundamental a constitutional alteration to arrangements that have stood us in reasonably good stead for generations. In this country our constitution has broadly served us well. We have had political stability for generations. It behoves the House to contemplate very carefully the wisdom of what it is doing, and to be sure that it is replacing the system that has served us well for so many generations with something better than what we had before. I do not believe that we have had the proper opportunity to consult widely and to consider carefully the Bill and the proposal that it puts forward.

Why would it not be possible, if the measure is important to the existence of the coalition, to propose a Bill that applied to this Parliament only, and thereafter to consider the longer-term question? I apply the same principle to some of the other constitutional changes that are being introduced by the Government. To my way of thinking, it is really quite likely that our constitution needs fundamental amendment. I have spoken in the House on several occasions, referring to the fact that I believe that the time may have arrived when we need to consider wholesale the constitutional arrangements of this country. But if we do that, we should do so in a way that dignifies with respect the history of our constitution; that treats it with sufficient seriousness and depth—that produces a constitutional convention, for example, or brings together men and women of good will across all the parties to decide upon the constitutional arrangements that may last 100 or more years and determine the democratic shape of our nation’s affairs. That is the way to introduce constitutional change, not in a piecemeal and fragmentary way, not incoherently, not because of immediate expediency, but because we have thought it through and because we know that what we seek to replace the former arrangements with will be better than what has gone before.

One of the things that troubles me most about the provision is that it removes the pivotal involvement of the monarch in decisions about the formation of a Government. It is not a light thing, however graciously Her Majesty may have placed her prerogatives at the disposal of the House, to remove some of the fundamental and inherent prerogatives that Her Majesty retains. In 1910, when Asquith approached George V and asked whether the King would be willing to make 300 new peers in an attempt to steamroller through a fundamental change to the constitution, the sovereign answered Asquith, “No. I will not allow you to push through so fundamental a change to our constitution in such a way unless you consult the people in a general election.” The right of the monarch to insist upon a Dissolution when some fundamentally antidemocratic change is proposed by a Prime Minister, is a fundamental safeguard in our constitution. It is something that the monarch, strong in the affections and respect of the British people, is uniquely able to do.

As Conservatives, I say to my right hon. and hon. Friends, we should think long and hard before we remove the cornerstone of our constitution—the discretion and prerogative of the monarch to safeguard our democracy. What is constitutional in this country is the Queen in Parliament, the Crown in Parliament. The mere fact that the Crown in Parliament is often silent and invisible and inactive does not mean that it is not an important cornerstone in our constitutional arrangements. The right of the monarch, either to decline a Dissolution or to insist upon a Dissolution, seems to me a fundamental safeguard. I am not saying that there may not be a case for change. What I am saying, and what I say to my right hon. and hon. Friends, is that it is not something for us as Conservatives simply to brush lightly aside, either for reasons of expediency or for reasons that are unnecessary. I say again: why would it not be possible to have a Bill that determines the length of this Parliament, if we needed such a Bill and if the good faith of the Prime Minister was not enough, and to consider the longer- term ramifications of the measure in a proper way?

The ability of the Prime Minister to seek a Dissolution is not simply the unfair, unprincipled, unattractive proposition that the Deputy Prime Minister proposed to the House an hour or so ago. The ability of the Prime Minister to go to the Queen to ask for a Dissolution can sometimes be done in circumstances very much in the interests of the nation. I am not saying that it is not sometimes abused. Of course I accept that it can be abused. But in other circumstances it may be vital. The Prime Minister may believe, for example, that it is required in the public interest that he should propose to Parliament a measure that was not in the governing party’s manifesto, but which, for reasons of principle, he believes he should put to the country. What does he do then? Let us suppose, for example, that a future Government proposed to join a united states of Europe. Let us suppose that a future Government, in the middle of its term, felt that it was necessary to put to Parliament a substantial surrender of power, so much so that it possibly placed the independent self-governance of this nation in question. Would not the Prime Minister be justified in those circumstances—I simply take that issue at random; there are many others—in asking the Queen for a Dissolution of Parliament? He has no manifesto commitment; this is a fundamental issue of principle. He is not seeking party advantage, but he believes in all conscience that he needs the approval of the British people. This Bill would prevent him from doing that unless he could gain the assent of 66% of the Members of the House. But he may believe, as a matter of conviction and conscience that it is vital that he should go to the people with so fundamental a proposal.

[Jacob Rees-Mogg]

Will my hon. and learned Friend give way?

[Mr Cox]

I will in a moment, if I may.

So again I say to the House, it is not simply a done deal. It is not an open-and-shut argument that fixed-term Parliaments are a good thing. The flexibility of our constitution, the ability of the Prime Minister to seek a Dissolution, is not always a bad thing; it can be a good thing. True it is that in recent times Prime Ministers have tended to abuse it. True it is that in recent experience they have perhaps lessened the dignity of their office by declaring elections in schools and by dithering over the timing of a general election. But that does not mean that we ought not to consider carefully a fundamental change to a fixed-term parliament. My plea today is that we do not regard this as simply a subordinate consideration. The way in which this has been introduced and the lightness with which the House is being expected to deal with this critical question troubles me.

In my submission, the existence of the Queen’s right to dissolve is in some circumstances very important. That may be why in Canada the prerogative of the Queen was preserved. Although they introduced a fixed-term parliament, the Canadians decided to retain the prerogative of the Queen to dissolve Parliament. We should think long and hard before we make a change of this kind. The role of the monarch is an important one and it is not one that we should simply discard.

I have a number of other observations about the Bill. I am troubled about the length—five years. That means that it postpones for five years, in perpetuity hereafter, the ability of the people of this country to pass their opinion upon the performance of a Government. That is potentially too long. The people of this country, who have had no opportunity to be consulted on this issue, are entitled to be consulted in greater depth than we have done hitherto, through the processes that this House has for the taking of evidence and through the ordinary channels of political communication.

I am troubled about the imprecision in what is intended in clause 2 as regards a motion of no confidence. Perhaps this can be tackled in Committee. The provisions seem to give rise to the realistic prospect that the courts may be tempted to invade on these matters. Let me say a few words about privilege. I agree with the right hon. Member for Blackburn that it is probably unlikely that the courts would wish to intrude on a matter so pivotal to the workings of Parliament as the Speaker certifying that there was a requisite majority under clause 2, but we cannot rule it out. As the Clerk of the Parliament has said, once we inscribe in statute, the courts are automatically engaged. It is their constitutional function to interpret a statute, and I cannot think of a single instance where the courts have declined to entertain an arguable interpretation in an arguable case.

It is true that the courts may say, after deliberation, and after appeal upon appeal, eventually in the Supreme Court, that they have declined to consider whether the certificate issued by the Speaker is indeed a valid certificate. However, this House has tried, on many occasions, to devise so-called ouster clauses seeking to foreclose the jurisdiction of the court on a judicial review, and I cannot think of a single case in which those clauses have prevented the court from saying, “Okay, we will get involved only in certain limited circumstances, but where it is, for example, a question of the precondition for the exercise of the discretion, we will get involved.” The Clerk gave a very good example when he pointed out that although clause 2 says that a certificate shall be “conclusive for all purposes”, that does not, in theory, prevent the court from inquiring into whether it is a certificate at all.

The courts have adopted precisely that analysis in the case of two or three statutes where the House has sought to exclude the jurisdiction of the courts and they have said, “No, it is our duty to scrutinise and to interpret the meaning of a statute, and where it is a question of whether the essential, fundamental preconditions are met for the exercise of a discretion, we will see whether they have been met.” It would be an act of voluntary self-restraint by the courts to deny themselves the jurisdiction to examine the statute to see whether the Speaker had complied. It is likely that they would exercise that voluntary self-restraint, but one cannot exclude the possibility that as time goes on—

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[Mr Allen]

Indeed. One of the small matters of dispute that I have had with the hon. Gentleman over the years has been that somehow he feels that we can recreate some golden parliamentary age. This place is owned by the Executive and the alternative Executive; the hon. Gentleman, more than anybody, should know that. If he does not understand that, he falls into the same trap as the Clerk, who talked about the

“House’s mastery of its own proceedings”.

That is a myth and a self-deception. We must confront that issue. We imagine that somehow there are 650 individuals here creating our own rules, but the rules are created by the Executive.

The Bill seeks to put into law provisions for a fixed-term Parliament, rather than putting them only in Standing Orders, which can be changed at a moment’s notice. The 10 o’clock rule is suspended on a daily basis and Standing Orders are cast aside and suspended on a regular basis. To pretend that there is an atomised Parliament with 650 Members all exercising their consciences is a self-deception out of which, I hope, hon. Members throughout the House will educate themselves. In that way, we can take back some control for the House and strengthen Parliament, and people can elect us understanding that the House of Commons—the legislature —is different from the Executive, and should have its own independence and powers.

The hon. Member for Stone (Mr Cash) led me down the road of the rebalancing of powers between the legislature and the Executive, and I agree with the Deputy Prime Minister that this, for once, is the Executive actually giving away a power, for whatever reason. We can make our own judgments about the reason, but I welcome the change, because it helps to rebalance the power between the Executive and the legislature. If we seize this moment, we could use it to help to strengthen this institution rather than, as the hon. Member for Stone mentioned, just following the Whips. We could use this precedent to make sure that we can build up and strengthen our Parliament.

[Jacob Rees-Mogg]

The hon. Gentleman says that the Bill could strengthen the standing of Parliament. However, as I understand it, the Bill does not prevent the Government from putting down a motion of no confidence in themselves and therefore, if they had a majority, getting an election whenever they wanted one. That is the ineffectiveness of the drafting of the Bill.

[Mr Allen]

There are so many flaws in the Bill’s drafting. The Committee, on the hon. Gentleman’s behalf, has done as good a job as it can in pointing them out. I hope that all of them will be put right during the Committee stage, as they could be put right if we were to have a special Public Bill Committee or a proper pre-legislative process. However, that is currently not the case. The hon. Gentleman makes a valid point, and one that should be addressed by the Government as the Bill proceeds.

The other thing about a fixed-term Parliament is predictability and continuity. Instead of permanent politics-as-entertainment, in which there is speculation about impending general elections and people feed tittle-tattle and gossip to raise or lower the political temperature, we will know that we can get on with serious business while knowing the date of the next general election and putting such considerations aside. That is something of great importance, and would lead to us as parliamentarians being able to seize greater control of what we do in this place on a number of issues, rather than being engaged, even at arm’s length, in speculation about when an election will take place.

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

May I begin by congratulating my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) on his excellent maiden speech? I agreed with every bit of it other than, I am afraid to say, his conclusion.

There are three things that I would like to look at briefly: first, the broad constitutional issues; then some of the detail of the debate; finally, the process. I hope that I can do that in the time allowed.

On the broad constitutional issue, I think that fixed-term Parliaments are a mistake. It is unfortunate to undermine a constitutional monarchy. A constitutional monarchy needs to preserve some role for the sovereign within it—some purpose in having that final arbiter of the system that is above and beyond politics. I am very nervous about giving that role to the Speaker, as this Bill proposes, because, first, it is a bad idea to have a Head of State and a quasi-Head of State—one is quite enough for me, and a hereditary Head of State, which we have had for the best part of 1,000 years, seems a pretty good one to have. Such an approach would also bring the Speaker, who will not be advised by the Prime Minister in this area, into the murky part of party politics. There is a risk that the Speaker could give his certificate for a general election—the most important part of our democratic process—as a matter of political controversy, and that cannot be wise. Let us consider the recent discussion on whether or not something is a money Bill, because that is already putting the Speaker in the political spotlight. A money Bill is an obscure procedural measure, whereas a general election is at the heart of everything that we do. So bringing the Speaker, you, Mr Deputy Speaker, and your colleagues into this murky business will be a mistake.

That leads to the issue of where the courts come in—a matter that has been discussed in this debate. I am not a lawyer, but I can say that the thing to bear in mind about Bradlaugh’s case is that the House of Lords ruled that it should not intervene in the procedure of the House of Commons, because at that point the highest court in the land was, of course, one of the Houses of Parliament. That is no longer the case, and with the Supreme Court outside Parliament, the constraint does not apply, so the courts may be willing to be more enthusiastic in their interpretation of statute than they were when the House of Lords was our supreme court. Those are the broad constitutional issues that give rise to concern.

We must then consider the Bill itself and what it contains. The problem with the Bill is that perhaps the best reason for voting for it is that it is pointless. The Whips have certain powers, authority and wise influence that they bring to bear and they could say to me and to other hon. Members that it might be best if we were absent when another hon. Member had tabled a motion of no confidence—they might suggest that we went on a nice trip, to the Seychelles or some such place. That motion would then pass, the Speaker would have no choice but to issue his certificate and, hey presto, we would have a general election at the time of the Prime Minister’s choosing. That is a rather foolish approach to legislation.

I doubt whether the 65% hurdle would ever come into effect, but it would be objectionable if it did get into law because it would set a requirement for more than a simple majority, for the first time in the history of this Parliament. That would be a procedural mistake; one vote ought always to be enough. It would also require a percentage of 66 and two thirds of those who are available to vote—not of those who actually vote. Interestingly, a Government who are introducing that into legislation are reluctant, so I hear, to have a turnout threshold in a referendum on the alternative vote. One may see some implicit contradiction in those two suggestions. So, the Bill is rather a hollow shell.

[Alec Shelbrooke]

Will my hon. Friend give way?

[Jacob Rees-Mogg]

It would be an honour.

[Alec Shelbrooke]

I want to pick up on that point about the alternative vote and what the hon. Member for Perth and North Perthshire (Pete Wishart) said about spoiled ballots in Scotland. Does this not further the case that a first-past-the-post election is by far the most effective?

[Jacob Rees-Mogg]

I am in entire agreement with my hon. Friend, and I am glad that he did not take us back to the local elections in Leeds—I thought that we were at risk of that.

I come to the process of the Bill and how we have reached this point. How did we come to consider a fixed-term Parliament? I am not aware that many of my hon. Friends put this proposal in their election addresses—they may have done if they were Liberal Democrats, but not if they were Conservative. It is not a Conservative proposal in any sense. It got into the coalition agreement late at night, in what would have been a smoke-filled room had not the previous Government banned smoking in office spaces. This therefore took place in a smoke-free environment—a healthy and politically correct room—and late at night it was decided that it would be a good idea to shore up the coalition for five years.

The political arguments for this Bill are first class, but it changes the constitution—a constitution that has evolved. Pitt the Elder, a Whig Prime Minister—it is always nice in the spirit of coalition to quote the Whigs—talked of the “genius of the constitution”. Let us invoke that genius, which has let our constitutional processes evolve and develop. This has not been done because the coalition needed some quick fix to make sure that the next election would clash with elections in Scotland and Wales—that is, of course, an inadvertent result of what has happened. The coalition did not come to this agreement with the possibility of extending the life of a Parliament beyond five years. I am sure that all hon. Members have read the note from the Library pointing out that this legislation will not be subject to the Parliament Act if the other place disagrees, because it extends the life of a Parliament by another two months should the Prime Minister, by order, so wish to do. This is an accidental Bill, thought up in the late hours of the night. It takes away that wonderful flexibility that our constitution has had to meet the needs of circumstances and to evolve.

One way in which the constitution was beginning to evolve, which the electorate seemed to want, was that a Prime Minister’s resignation part way through a Parliament should lead to a general election. When I knocked on doors in my constituency, people did not tell me that they wanted fixed-term Parliaments, the alternative vote or any of that. However, they did ask who had voted for the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown). People in North East Somerset of course knew his constituency, because they are a knowledgeable lot. They asked who had elected him to be Prime Minister. Although the constitution is clear that we can change Prime Minister as often as Her Majesty sees fit, the mood of the country is for that constitutional evolution. That is how our constitution works and how it has done for hundreds of years—at least since the Glorious Revolution. Let us hope that it continues to work like that and that this Bill is amended on the Floor of the House out of all recognition.