United Kingdom Parliamentary Sovereignty Bill

Jacob Rees-Mogg Excerpts

Friday 18th March 2011 Commons Chamber

[Mr Cash]

I accept that that is an important point, but we have been put in this position, historically and legally, by the manner in which the European Communities Act 1972 has increasingly been eating away at the way in we legislate in this House.

This is a difficult question, and I do not want to get too historical about it, but similar considerations arose at the time of the passing of the Bill of Rights, and also in the proposed constitutional settlement around 1648. At that time, the sovereignty of the monarch was regarded by the Crown as absolute, and there was a question of how to deal with that. Unfortunately, it was dealt with, in the words of Oliver Cromwell, as a matter of “cruel necessity”. Despite the fact that many people did not want it to happen, he took off the King’s head as a symbolic demonstration that the King was no longer sovereign.

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

I am afraid that I would dispute my hon. Friend’s interpretation of what led to the execution of Charles I. I think it was much more complicated than that.

[Mr Cash]

I am prepared to accept that it was more complicated than that. I am making a point, but I defer to my hon. Friend. The real point is that the word “sovereignty” in this context has a practical, legal and factual base. We need to assert our sovereignty when it is under invasion, which is exactly what is going on now. I think that that is the simplest way to put it.

United Kingdom Parliamentary Sovereignty Bill

Jacob Rees-Mogg Excerpts

Friday 18th March 2011 Commons Chamber

[Mr Harper]

The flaw in that argument is that to put into an Act of Parliament the language in clause 1 would invite exactly the problem that my hon. Friend is concerned about. Because it would be in a statute that judges would have to interpret, it would invite them to start defining “sovereignty” and interpreting what Parliament meant by the words in the Bill. I do not think that is very helpful.

[Jacob Rees-Mogg]

Will the Minister give way?

[Mr Harper]

I will give way once more on this point, then I will make some progress.

[Jacob Rees-Mogg]

I am grateful to the Minister for giving way, because this point is tremendously important and may, if he is correct, point to a fatal flaw in the Bill. I hope that he will deal with it carefully and precisely. I do not understand the idea that things that are in statute are justiciable but things that are not in statute are not. It seems to me that the judges can interpret the law of the land in the round, not just statutes. Will he focus on that point?

[Mr Harper]

The reason that my hon. Friend the Member for Stone gave for having the Bill and for reaffirming the sovereignty of Parliament was the risk that judges might erode the doctrine of parliamentary sovereignty by setting out some new, autonomous legal order in which EU law had authority in the UK regardless of whether Parliament continued to give it that authority. We had that debate on the European Union Bill, and my right hon. Friend the Minister for Europe made it quite clear that so far our judges have done nothing of the sort. In fact, they have had arguments put before them inviting them to take that stance and have specifically rejected them. That was why, in that Bill, which my hon. Friend and a number of other Members have talked about, we specifically set out that EU law had effect in this country only because it was given that effect by Acts passed by this Parliament. We did not think it was helpful—quite the reverse—to have a general sovereignty clause, which is what this Bill would introduce.

It is worth discussing one or two wider issues. My hon. Friend the Member for Worthing West was right when he drew attention to the fact that under clause 3(b), the Bill covers not just the European Union and the European Court of Human Rights but any rule of international law at all. It provides that no Minister of the Crown is to

“make or implement any legal instrument which…is inconsistent with this Act”,

in other words which affects the sovereignty of this Parliament. That seems a very wide term, including both domestic legal instruments and instruments that are binding in international law.

The Bill also appears to extend to any instrument, including any treaty, that the UK will make or implement, or has ever made or implemented. It appears that it would act with retrospective effect. It seems to me that that is quite deliberate given the words in clause 3 stating that it

“shall have effect and shall be construed as having effect and deemed at all times to have had effect”.

I shall come back to that in a moment.

I do not believe the Bill takes any notice of the changes that were made to the rules for ratifying treaties that were introduced in the Constitutional Reform and Governance Act 2010, which provides a number of tests and procedures for ratification that improve parliamentary involvement in the process. For example, when a Minister signs a treaty that does not come into force upon signature and to which domestic procedures concerning EU law do not apply, it may not be ratified unless it is laid before Parliament for a period of 21 days and neither House of Parliament passes a resolution objecting to it. If the House passes such a resolution, a Minister must lay a further explanation before the House, which may vote again within a further 21 days.

Only in exceptional circumstances may a treaty be ratified without the agreement of this House, and a Minister cannot override a decision of the House that it should not be ratified. If the Bill became law, what would happen if Parliament did not object to the ratification of a treaty but it was subsequently concluded that it was inconsistent with the Bill? What effect would that have on the sovereignty of Parliament?

I argue that the Bill is rather dangerous because of the effect that it would have on how we conduct international relations. It would make it impossible for us to participate in a number of organisations—for example, we belong to the United Nations and have signed a range of treaties connected with it. I listened closely to what my right hon. Friend the Prime Minister said this morning about the Security Council resolution. He pointed out the wide authorisation that it gives us and other members of the international community to act but he also explained that it places clear limits on what we can do. If the Bill were in force, it would not allow us to enter into agreements that limit what Parliament can do unless we held a referendum. We could not sign up to any international treaty with which we had engaged that somehow constrained our behaviour, as most do, unless we held a referendum.

My hon. Friend the Member for Worthing West highlighted the Bill that we discussed earlier, which encountered no opposition, on the wreck removal convention. If we accepted the measure that we are discussing, we would pass primary legislation to hold a referendum on whether the British people should support the wreck removal convention. That would not be welcome.

[Jacob Rees-Mogg]

My hon. Friend may have found a fatal flaw in the Bill, and I therefore ask him to consider it further. However, an EU rule has effect in this country above UK legislation, subject to the 1972 Act. That is not the case with agreements made in the United Nations or under other treaty conventions, which Her Majesty’s Government can abrogate at their own will.

[Mr Harper]

My point, which my right hon. Friend the Minister for Europe made when we debated the European Union Bill, is that EU law has primacy in this country only because Parliament has passed legislation to say so. The Government will not do it, but it is open to Parliament to change or repeal the Act so that EU law does not have primacy. It is possible, although we are not going to do it. That is the flaw in the argument.

Clause 4 is another good reason for objecting to the Bill because it purports to bind future Parliaments. It states that a Bill passed in this Parliament cannot be amended without the consent of the people in a referendum. An important aspect of parliamentary sovereignty is that Parliament may enact or repeal any legislation it pleases, and it cannot bind its successors. Clause 4 undermines that. It also states:

“No Bill shall be presented to Her Majesty the Queen for her Royal Assent which contravenes this Act”,

but is not clear who would determine whether a Bill contravenes “this Act”. It would clearly have to be the courts, which would then be engaged in assessing whether Parliament had properly passed Bills and whether Bills should have received Royal Assent before a referendum had taken place. That invites courts to have much more power.

Big Society

Jacob Rees-Mogg Excerpts

Monday 28th February 2011 Commons Chamber

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

This debate is ideological. It was a Labour Cabinet Minister who said that the man in Whitehall really does know best. What we are talking about here—it is one of the reasons the Liberal Democrats are such an important part of the coalition; it is one of the biggest areas where we agree—is the philosophical split between those of us in the coalition who believe that the state is built bottom up, and our socialist friends who think that the state is created top down.

If we go back to the beginnings of society—man in a state of nature—we see that there is no government, but there is society. Man is a political animal. There is society in our earliest history and forms. Government comes later. The problem with government is that, when it comes, it binds. Let us recall the image of Gulliver when he is bound down by the Lilliputians. Thousands of little people have crawled all over him and tied his hair to the beach. They have put ropes over him so he is stuck—he is tied down. That is what we saw in 13 years of socialist Government. The view was that, if it was not done by the state, it was bad.

We have heard a great array of examples from my right hon. and hon. Friends of what that means: the insurance policies for referees; and my hon. Friend the Member for Battersea (Jane Ellison) needing £2 million of insurance. We have heard about the CRB checks. Bell ringers in my constituency are worried about having any children come to ring bells. Although large numbers of them ring together, they are frightened that the big state may not approve and may not say yes. We have data protection. I know that fellow rotarians are here in the House this evening. My own rotary club, Midsomer Norton and Radstock, takes old people shopping—a good thing to do, one would have thought. Members of the rotary club go around to local churches and ask, “Are there any elderly people who might need a hand?” What is the response? It is, “We are not allowed to give you the names of the old and the lonely because of data protection, because the man in Whitehall, who knows best, is fearful that you have evil intent and he will not allow that to happen.” That is why the big society is so important.

If we believe that society is built by individuals, their families, through communities, they are the ones who should make the decisions, raise the money and spend it according to the needs of their communities. One of the great cankers of socialism was that it took over the funding as well. Then we get into the argument about cuts, which is the great confusion in relation to the big society. It is a bad idea for charities to receive most of their funding from Her Majesty's Government because, as soon as they do, they become agents of the state and lose their independent action. They become subject to the rules, regulations and disbursement requirements that are set upon them by Governments. All that must be swept away. The Minister must cut Gulliver free. Gulliver’s hair must be released. He must be unbound. He must be able to stand up and stride forth.

[Stephen Pound]

As ever, the House is so much in the hon. Gentleman's debt as we move from the noble savage to “Prometheus Unbound”, spanning as we do Somerset rotary clubs. The logic of his comments would appear to be, and I speak as a proud member of Greenford rotary club, that we should, for example, get rid of the Charity Commission, because surely the dead hand of the state would apply just as much to that commission. Is he suggesting that it be cast into the dustbin of history?

[Jacob Rees-Mogg]

The hon. Gentleman and fellow rotarian makes an excellent point. I hope that the Minister will consider thorough reform of the Charity Commission—set the people free!

Parliamentary Voting System and Constituencies Bill

Jacob Rees-Mogg Excerpts

Wednesday 16th February 2011 Commons Chamber

[Stephen Williams]

I thank the hon. Gentleman, who is my Political and Constitutional Reform Committee colleague, for that intervention, but I think he can predict my answer. What disturbs me about the response from their Lordships last night is that it ignores the will of the elected House. Our fellow Select Committee colleague, the hon. Member for Epping Forest (Mrs Laing), got that balance exactly right.

The Welsh Assembly election in 2003 had a turnout of only 38%. I ask my Labour friend, the hon. Member for Rhondda (Chris Bryant), who is an ally in arguing for a yes vote should we have the referendum in Wales, does he really think the Government of Rhodri Morgan who were elected in 2003 had no validity because only 38% of his constituents turned out? Does the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) think the Labour administration of Manchester city council, elected on a 27% turnout in 2008, has no legitimacy whatever? That same question could be asked of Sheffield with 36%, or Leeds—a Liberal Democrat-Conservative coalition—with 35.7%.

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

In general elections the turnout is normally 70% or more. Is it right that that 70% of people should have their voting system changed by fewer than 40%?

--- Later in debate ---

[Mrs Laing]

The arguments of Lord Lamont and his colleagues in the other place are absolutely right, as was everything the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) said this evening; I would repeat them in my remarks, but time will not permit me to do so. Sadly, those two rights are incompatible, because the choice before this House this evening is no longer about AV referendums and thresholds. I hate AV and do not want this £100 million referendum. I have always been in favour of a threshold and have said so many times in this House, but that is not the choice before us.

Sadly, the choice before us is between a Labour Government who ruined this country’s economy over 13 years and a coalition Government between the Conservatives and the Liberals that will give the country the stability it needs to recover from the dire economic situation. This referendum on a simple majority, which is stated in the coalition agreement, is a high price to pay for that stability. I, for one, agree to pay it with a very heavy heart.

[Jacob Rees-Mogg]

I am slightly troubled by my hon. Friend’s remarks, because I was unaware that this had been put down as a confidence motion.

[Mrs Laing]

I appreciate my hon. Friend’s intervention. It is not a confidence motion, but sadly it is for some of us who have loyalty to the Prime Minister, because we are Conservatives first and foremost and want to see the stable government that is now being provided in every area other than constitutional development. We want to see that stable government and so must support our Prime Minister and his coalition. For some of us, it is done with a heavy heart, but that is the price that the Liberals have sought in order to improve their party political advantage. The right hon. Member for Manchester, Gorton is absolutely right that we ought to have a threshold, but it is too late. The Bill is at its end. Let us just get on with the process of having a referendum and ensure that the British people see it for what it is and do not vote to change our constitution.

Parliamentary Voting System and Constituencies Bill

Jacob Rees-Mogg Excerpts

Tuesday 15th February 2011 Commons Chamber

[Mr Harper]

My hon. Friend is quite right, but it is important for the Boundary Commission to be certain about the matter at the beginning, so that it can then undertake the rest of the boundary process. If the decision were up to the commission and it were to make a certain assumption in its initial proposals, and then come to a different conclusion as a result of the extensive written consultation process and public hearings that we have laid in place, it would have to make a radical change to the proposals. As my hon. Friend the Member for Epping Forest, who is now back in her place, said in a previous debate, certainty and clarity are very important to ensure that the boundary review is carried out properly.

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

I support the amendments fully, but once the Isle of Wight has been given two seats, the argument for absolute uniformity has fallen, which it did not in the case of Na h-Eileanan an Iar, the Shetland Islands and so on. If the Isle of Wight can have special treatment, why not Cornwall and, as far as I am concerned, why not Somerset? Every county now has a special case to make that ought to be considered. In largely accepting the Lords amendment, the Government have given the game away.

[Mr Harper]

I think that my hon. Friend helps my argument. As I said, this is part of the parliamentary process. The Government introduced a Bill, which did not include an exception for the Isle of Wight. When Lord Fowler tabled his amendment, the Government strongly resisted it—indeed, we were criticised for doing that—but the House of Lords took a different view. My hon. Friend mentioned Cornwall, but the House of Lords debated Cornwall, voted on it, and decided, by a considerable margin, that the case for Cornwall had not been made. I appreciate that some hon. Members disagree, but that was the view that the House of Lords reached. It did not reach the same view about the Isle of Wight. There was a majority of 74 in the other place for making an exception for the Isle of Wight. That was not the Government’s position, but a strong message from the other place.

Inspiration has now struck me, and I can answer the question that the hon. Member for Stoke-on-Trent Central (Tristram Hunt) asked. Based on 2009 figures, one seat would be 34,366 away from the UK quota and the two seats would be 20,748 away from the quota. That is a significant narrowing of the difference.

[Jacob Rees-Mogg]

Although the Lords are wonderful guardians of our constitution, the debate has seen any number of perfectly sensible amendments rejected, and the Government have not lost a single vote in the House. I therefore do not see the logic of saying, “We must give in to the Lords on this, but on everything else we’ll tell them they’re wrong and send the Bill back.”

[Mr Harper]

I think the difference is the strength of view in the other place on the matter. [Interruption.] That view was also consistent and cross party. The Labour Lords who voted in the Division in the other place all supported Lord Fowler’s amendment. It is therefore extraordinary that Labour Members are making so much noise now. The Government have acknowledged the debate at the other end of the corridor. Given my hon. Friend’s previous comments about their lordships, I would have thought that he saw more strength in the case. On the basis of the arguments that I have set out, I hope that that case will be supported.

--- Later in debate ---

[Chris Bryant]

The hon. Gentleman makes a very good point. That was why I was opposed to the versions of thresholds that were brought forward in Committee. There were two different versions. One was that it was necessary to get 25% of the electorate to vote yes, as well as more people voting yes than voting no. The other was a 40% threshold. If neither of those two conditions were reached, the result was to be an automatic no and we were to stick with first past the post.

That is not what this amendment’s threshold would do. This is a very different referendum, and consequently needs a very different style of threshold. All this threshold would do is say that Parliament ought to have a second thought. It would say that if we do not get up to 40%—if, for instance, the turnout in England is 15% or 20 %, whereas in Scotland and Wales it is closer to 43%, 44% or 45%—there ought to be a moment when Parliament thinks again about the implementing process in going forward.

[Jacob Rees-Mogg]

The hon. Gentleman is a distinguished constitutionalist, and I wonder whether he thinks that in the context of referendums being used more frequently, and for deciding on European matters and constitutional issues, it would be a good idea to settle on a threshold for all referendums, so that people knew where they stood.

[Chris Bryant]

As the hon. Gentleman knows, I am very grateful to be called distinguished about anything, but I do not think he would carry the House on that point. I am not a fan of referendums generally at all, because I think the whole point of parliamentary democracy is that Members are elected to take decisions, provide leadership and represent the people in our constituencies. I think that is the best way of advancing policy. However, where there are referendums, I think it is better if they are advisory ones rather than implementing ones. That is the point I would make about the whole referendum issue before us.

I think this is a special referendum and I therefore think it needs a special threshold. That is precisely what Lord Rooker’s amendment provides for, which is why we will be supporting it tonight.

Legislation (Territorial Extent) Bill

Jacob Rees-Mogg Excerpts

Friday 11th February 2011 Commons Chamber

[Harriett Baldwin]

That is certainly an original approach, and one that, I must confess, I had not heard from any other source, so I very much appreciate my hon. Friend’s putting it on the record. I said at the beginning of my speech that I am very much in favour of devolution and allowing decisions that affect particular areas to be made at the lowest possible level of government. That is the theme of localisation, so although my hon. Friend has set out an original idea, I prefer what I have proposed in my Bill.

To return to my point about Standing Order No. 97, in its 1999 report on the procedural consequences of devolution, the Select Committee on Procedure said that

“the provision allowing the Speaker to certify Bills as relating exclusively to Scotland”

could be

“transferred to a new Standing Order and adapted so that the Speaker may certify that a bill relates exclusively to one of the constituent parts of the United Kingdom.”

Further to that, Standing Orders Nos. 102 and 106 allow legislation to be referred to a Welsh Grand Committee. However, we are now touching on issues that have gone far above my pay grade, although they are issues that would be there for the House to agree once my Bill had received Royal Assent.

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

I am not quite sure how we get from my hon. Friend’s Bill to the legislative programme that she is suggesting. Is the idea that this would be done exclusively through the Standing Orders of this House, and that we would therefore change the structures of the passing of legislation purely on our Standing Orders?

[Harriett Baldwin]

My Bill has deliberately shied away from being prescriptive in that area. Our constitution has a capacity to evolve and adapt to changing circumstances in a way that does not need to be written down in legislation, so my Bill stops at the point where the draft legislation outlines which parts of the United Kingdom it affects. It would then be for us, through House procedures, to look at the ways in which the new legislation would permit the House to treat different Bills in different ways.

I have touched on the purpose of the Bill, but there are other provisions that are worth highlighting. The Bill would establish a principle of legislative clarity, which would mean that citizens and Members of Parliament would have the right to see how proposed changes to the law would affect them or their constituents. There is also flexibility built into the Bill, so that if it is not possible for the Secretary of State to affirm that the draft legislation is compatible with those principles, the Government can still make a statement that they wish to proceed anyway. I am sure that no one in the Chamber could possibly object to this new level of transparency in our legislation.

The Bill also calls for a separate statement—a financial memorandum—on the financial implications of legislation on the constituent parts of the United Kingdom. Again, this is designed to be helpful to you, Mr Speaker, by making any financial effects of legislation—for example, via the Barnett formula—clear and unambiguous. It is often argued that, because of the Barnett formula, it is impossible to achieve granularity when it comes to the impact of legislation on England. The financial statement would therefore allow the question of whether that was the case to be transparent.

In bringing my remarks to a close, I simply point out that the Bill is both minor and entirely unobjectionable. In fact, it is so innocuous that I am sure all hon. Members in the Chamber today will support not only its aims but its intentions, and that they will all wave through its Second Reading. I am sure that the Government will have no issue with the intended consequences of the Bill, although they may have some drafting issues with the unintended consequences, on which I would welcome their input in Committee. This Bill is necessary to create a strong foundation on which the House can make progress on addressing the important issues of territorial extent, and I commend it to the House.

--- Later in debate ---

[Chris Bryant]

I would like to see the issue addressed in different ways—as it has been addressed in other countries. For example, the role of the second Chamber needs to be looked at. It has been embarrassing that the vast majority of people who have been appointed to the second Chamber in the past few years have been from London and the south-east of England. That is almost inevitable when we have an appointments system. I would prefer to move to an elected system, where we had more people representing the whole of the UK. It might be possible to devise a better answer to the West Lothian question through reform of the second Chamber on an elected basis.

However, as the hon. Lady has said, the whole business of parliamentary privilege comes into play. It has been a fundamental assumption from when the first commoners were allowed to attend parliamentary proceedings under Simon de Montfort in 1258 that grievances that they presented on behalf of the people should be able to be presented without any difference between one and the other Members.

[Jacob Rees-Mogg]

rose—

[Chris Bryant]

I thought that going back to the 13th century might stimulate the hon. Gentleman.

[Jacob Rees-Mogg]

The right of shires to send people for address of grievance pre-dates Simon de Montfort. It is the boroughs that came in at that point.

[Chris Bryant]

Simon de Montfort invited four knights from each of the shires and six from Yorkshire in 1258 to present in Parliament their grievances on behalf of others. We do not know that all the knights attended. Of the ones who did attend, we only know that because they presented expenses and had them paid, so this problem has been with us since Mauge Vavasour had his payments made in Michaelmas 1258. It was a significant moment. The burgesses obviously arrived after 1258, though earlier in the 13th century there were occasions when some burgesses from the Cinque ports were invited, and some from those cities where there were a large number of Jewish residents were brought to Parliament to debate specific issues.

[Jacob Rees-Mogg]

The knights of the shires came much earlier than that—they come from the reign of Richard I. That is attested thoroughly.

[Chris Bryant]

Well, not all 37 shires had representation, and they certainly did not have that as of right. I am perfectly happy to debate this at another time, but for now Mr Speaker has got that slightly fascinated but also slightly irritated face on.

It would be very dangerous to dismantle the fundamental principle of the equality of all Members of this House. That is why I think that, in the end, the direction of travel the hon. Member for West Worcestershire is moving in with this Bill is an unfortunate one.

--- Later in debate ---

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

The Bill promoted by my hon. Friend the Member for West Worcestershire (Harriett Baldwin) is tremendously important because the West Lothian question is the constitutional question of the day. That question and reform of the House of Lords are the two issues with which politicians and parliamentarians have wrestled since just before the first world war, although no great solution to either has come forward. Today’s debate gives us the opportunity to examine what the solution to the question might be and how the Bill might contribute.

Although I am sympathetic to what the Bill is an attempt to do, I have several concerns about its details, some of which were spelled out by the hon. Member for Rhondda (Chris Bryant), when we get down to the approach to Bills that Governments might take. What classifications would we have? Some issues are devolved to Scotland, Wales and Northern Ireland, while some apply throughout the United Kingdom and others are purely for England. A Bill might cover English issues and matters that are not devolved to Wales but are devolved to Scotland. Would a Standing Order of the House allow English and Welsh Members to consider that Bill, but not the Scots or the Northern Irish? What if one clause of a Bill related to all parts of the United Kingdom, but all the other clauses related only to England? Would Members from Scotland, Wales and Northern Ireland join proceedings in Committee and on Report to vote on that particular clause, although they had been kept out of Committee and Report for every other part of the Bill, subject to the Standing Order that would follow from the Bill? The sheer complexities of clarifying territorial extent are probably too great.

Our present position is relatively straightforward. An Act of Parliament can technically overrule a devolved power, but Governments have not been willing to bring forward such a measure because of the great constitutional investment involved in establishing the devolved authorities, all of which were backed by referendums in their constituent parts. If the Bill were passed, England would be protected purely by Standing Orders. It is almost an insult to the English to say, “We had a referendum and then a Parliament for Scotland, and we carried that out in a thorough and proper way, but for the English, we will have a Standing Order.” Of course, the drawback to a Standing Order is that an incoming Government could simply remove it so that all MPs could once again vote on all Bills in Committee and on Report. They would lose little political capital if they did so, because a comparatively small amount of political capital would have been invested to set up the previous system, unlike under the referendums prior to setting up the systems of devolution in Scotland, Wales and Northern Ireland.

Stage two from this Bill seems to involve fundamental flaws of definition and description. As my hon. Friend the Member for Cleethorpes (Martin Vickers) suggested, it could give rise to ridiculous situations. We will shortly be asked by their lordships to consider whether the Isle of Wight should remain an individual constituency. I rather like the idea that only one Member of Parliament should be able to vote on that. I know without any doubt which way my hon. Friend the Member for Isle of Wight (Mr Turner) would vote, but I have a feeling that the Minister would not be entirely happy if the decision of the House was made exclusively by my hon. Friend.

We must be careful about taking territorial extent too far, and there are huge areas in which the situation would not be clear. Let us say that we considered a Finance Bill following the devolution of tax-raising powers to Scotland. Would we go through that Bill with different people sitting on different Committees for each clause, depending on a statement made by the Chancellor of the Exchequer? Would we have two separate Finance Bills? As the hon. Member for Rhondda said, we could have a succession of Bills to try to tease out regional effectiveness. It would be incredibly difficult to make such a situation work.

I am afraid that I disagree with my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) because there is a difference between having an in-built majority to stop something throughout the five years of a Parliament, and a hung Parliament. Let us put it this way: roughly 100 seats are not English, so 550 seats are English. If 300 of those 550 seats were held by Conservative Members, the Conservatives would have a complete block on all English legislation for an entire Parliament. In a hung Parliament, there is an acceptance among minority parties that the Government’s business must be carried, but the main Opposition will oppose day in, day out throughout a hung Parliament, as we see in this hung Parliament and as we saw in the 1970s. In such a situation, the official Opposition would have a majority of English seats, and therefore a block on all exclusively English legislation for the whole Parliament, so the Secretaries of State for Health and for Education would find it almost impossible to get any of their legislation through.

[Iain Stewart]

My hon. Friend makes my point for me, as does my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind). If the general election produced a clear majority for one party in England, but the result for the United Kingdom as a whole was different, the UK Government should proceed with the utmost caution and not introduce legislation that would be diametrically opposed to the wishes of English Members.

[Jacob Rees-Mogg]

My hon. Friend makes an important and valid point. The West Lothian question is serious, but the answer is not necessarily one that we have been given so far. Just because the question is right, it does not mean that an answer to it would necessarily work. My hon. Friend is correct to say that if the majority of English seats had been won by Conservatives but we had ended up with a rainbow coalition, it would have caused huge dissatisfaction and opposition within England, as well as a feeling that the Union was not working for England. I want the Union to succeed and prosper, so I want an answer to the West Lothian question to come forward which the English find fair and with which they are comfortable.

My right hon. and learned Friend the Member for Kensington was right to emphasise the issue of fairness, but such fairness needs to be met with constitutional propriety and effectiveness. We have heard a great deal about the fairness so far today, but not about a workable constitutional situation, and that will not do us any good because however much one dislikes the Opposition party being in government, it will be one day, and when it is in government, it must be able to get its programme of government through. The way to stop that programme of government is not to put down so many constitutional man traps that that Government cannot get their business through, but to defeat them at the ensuing general election and reverse the worst elements of what they have done. The Bill would lead to a system that would make it incredibly difficult for a Labour Government to get their English business through, but that is not an answer to the West Lothian question because it would simply mean that that Government would have to reverse the protections that had been introduced, and I would have the gravest concerns about such protections being established purely through Standing Orders of the House.

I know that this is not in the Bill, but its purpose is to establish the declaration so that Standing Orders can then be built either to put in place the double majority suggested by my right hon. and learned Friend the Member for Kensington, or to establish practice in Committee and on Report. Is it right for us to change the whole basis of legislation through Standing Orders? Standing Orders can rightly do many things concerning the hours that we sit and the way that business is timetabled, but they do not tend to change the fundamental way in which legislation is taken through the House.

[Harriett Baldwin]

I thank my hon. Friend for giving such an eloquent speech on some of the issues surrounding legislating on this subject. Does he accept that the Bill stops well short of giving any direction whatever as far as Standing Orders are concerned? It simply says that draft legislation will outline its impact and, in a side statement, its financial impact.

[Jacob Rees-Mogg]

I thank my hon. Friend for making that point, but I was rather hoping she would not, because there is a desperate tendency on Fridays towards motherhood-and-apple-pie Bills that say nothing very much about anything in particular. If her Bill is that type of Bill, what on earth are we doing discussing it? If it just says that the Minister, out of the kindness of his heart, will say a few words about where an Act applies, it is completely and utterly pointless, and the House should not discuss things that are pointless. We do that on Fridays, and Madam Deputy Speaker is amazingly patient in listening to some of these discussions.

My hon. Friend’s Bill has to be an important stepping-stone in answering the West Lothian question, or it is nothing. I give her credit for having the courage to begin to address that question, rather than just detaining us here when we could be doing work in our constituency on a Friday. I hope that she will not try to hide behind the minutiae of the Bill instead of looking at the bigger picture, because that bigger picture is crucial.

My hon. Friend is right to put pressure on the Government to come up with a solution that can be debated in Government time. In that respect, the Bill is really noble, because the Government do have to think about the issue. It is unfair on the British—the English; I apologise for using those two words synonymously, as I know the English do a great deal.

[Chris Bryant]

And the French.

[Jacob Rees-Mogg]

The French?

[Chris Bryant]

The French very regularly confuse “anglais” with “britannique”.

[Jacob Rees-Mogg]

I thank the hon. Gentleman for that illuminating point. I always thought that the auld Alliance meant that they were rather keen on the Scots, but that may be a slight diversion.

What ought the Government to do and to think about as they approach a solution to the West Lothian question? They have to think about the practicalities. We have had learned discussion already today about how difficult it would be to have an English Parliament, because one would then have an English Government, and that would be simply too big. That is the problem that Balfour identified when first discussing Home Rule. He asked what we do about England, when we have Ireland, Scotland and Wales as nations. Do we chop England up, or simply have it swamping the whole new system that is being established? If there is an English Prime Minister and a UK Prime Minister, who does the President of the United States visit when he comes? He sees the English Prime Minister, because the UK Prime Minister would have peripheral powers. He might have a slightly better house, but that would be the extent of it. There is not an easy solution to the English Parliament issue.

There is then the question of English votes on English issues, but the more one discusses that superficially hugely attractive option, the more one discovers that it does not work, because there would be two tiers of MPs, and a Whitehall Government that could not get a major part of its legislation through and would therefore begin to fail. One would then begin to try to chop up the procedures, so that the Government could decide which MPs debated which bits of legislation, but that would not work either, for reasons that we have discussed. There was mention of the Welsh Grand Committee and how little that was able to succeed in doing; and when the Conservatives were last in government, they thought that a sop to devolution would be to have a Scottish Grand Committee. The fact is that the governing party has to be able to get its parliamentary business through. Whatever schemes it sets up will not work if that fundamental principle is not followed, and will be changed to the extent that they cannot be used.

So what do I suggest that the Government do? That is the nub of it. We will have an election at some point in which the Conservatives have a clear majority in England but are not the major part of the governing group. At that point, there will be squeals of anguish from the English electorate, and the Conservative party will use that all it can for political advantage. We will find that the Union comes under fundamental attack. I agree with my hon. Friend the Member for Milton Keynes South (Iain Stewart) that any attack on the Union is likely to come not from the Scottish nationalists but from English nationalists, fed up with the way that they are being treated.

I would like the Government to consider the proposal that we heard earlier about allowing the two Parliaments and the one Assembly to come together to some extent, but I accept that that is difficult: As a result of how they were set up, it would be problematic to change them at this stage, but it may be that something could be done along those lines. Alternatively, the thing will simply have to be done in the best form of British fudge—that is, Labour Members, when in government, will have to be enormously responsible and self-denying about what they do in England, and conventions will have to become very important in our constitutional settlement. If it becomes a convention, but is not formalised, that English representation will have a majority, or will at least accept a veto on extremely controversial measures, that may be a fudge that would work.

It is interesting and worth noting that on both big constitutional issues—reform of the House of Lords and the West Lothian question—after 100 years of the best brains trying to find a solution, no obvious solution has come up. With every solution that does come up, after one has thought about it for a week or two, one sees any number of holes in it. I therefore see absolutely no reason to oppose the Bill when we come to vote on it. There is nothing objectionable in it, and my hon. Friend the Member for West Worcestershire has been very sensible to ensure that that is the case. It is good to push the Government, but I would not hold my breath—I do not think that I can breathe in for the next 100 years —waiting for a solution to this almost intractable problem. However, we have to recognise that, as my hon. Friend says, the English may get deeply fed up with the current situation, and when they do, that is when the Union will be most at risk. That is, I think, what most Government Members, and at least one Member on the Opposition side of the Chamber—the hon. Member for North Antrim (Ian Paisley)—would be extremely keen to avoid.

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[Mr Chope]

I am generous by nature but I would be even more generous if my hon. Friend had explained why it has turned out to be impossible for the Government to appoint the commission before Christmas, as they originally intended.

[Jacob Rees-Mogg]

May I come to the support of the Minister, and on a constitutional issue, which may surprise him? Our consideration of the earlier legislation on the alternative vote, parliamentary boundaries and fixed-term Parliaments was desperately rushed, and therefore its measures were not necessarily very well thought through, which is a great shame. In contrast, the progress we are making towards considering the West Lothian question in a deliberative and thorough way is in the best traditions of high Toryism.

[Mr Chope]

My hon. Friend is absolutely right. I think that these deliberations should be conducted by the commission itself, however, rather than by the Government, and I do not want the Government to be agonising over whether there should be a commission and, if so, who will serve on it. I do not think my hon. Friend and I are very far apart, as I believe the commission must be given the maximum amount of time to go into the details of this topic. However, if we are going to get this sorted out before the end of this fixed-term Parliament, why have we not got on with it already? What is the reason for the delay? It seems to me that the justifications for delay put forward thus far are specious in the extreme, and we have learned from experience that if a Government have not got a proper explanation for delay, the reason is usually that they intended to delay matters, as is the case now.

--- Later in debate ---

[Harriett Baldwin]

I thank all Members on both sides of the House for their excellent contributions today. The debate has been extremely interesting, and we have heard widespread support for the Bill’s intentions. We have also heard a range of objections, however, such as from the hon. Member for North Antrim (Ian Paisley), but I think his fears are unjustified; we are on his side here. By not talking about this, we would run into as many difficulties as we might through some of the solutions he fears. I urge him to support the Bill on Second Reading, as I think that if it progresses that will serve to get some of the issues out in the open, and not bury them, which I think would be worse for his case in the long term.

The shadow Minister, the hon. Member for Rhondda (Chris Bryant), put up a series of straw men—or ghouls and ghosties—that do not apply to the Bill. I therefore feel sure that he will support the Bill—[Interruption.] I may have misread his intentions, in which case I ask him to forgive me.

My hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) made some supportive comments, but he also rightly raised concerns about some of the subsequent issues that this House might still have to grapple with. I am not, by any means, pretending that this Bill solves all those issues, but his description of it as “pointless” rankles. The very fact that we have had this excellent debate shows that it is not pointless. It would provide much greater clarity and put that on a statutory footing, and would prevent the Speaker from possibly being put in a difficult position.

[Jacob Rees-Mogg]

I apologise if I implied that I thought the Bill was pointless. I was concerned that if it did not lead to anything else, it would be pointless, and therefore I thought it needed to go on to the subsequent events.

[Harriett Baldwin]

I thank my hon. Friend very much for that clarification. In an elegant speech, the Minister made similar points, saying that the Bill was good as far as it goes but that we need to go much further. I would have been much more sympathetic to his desire for me to withdraw the Bill today if he could have made some announcements or put some measures on the table that would give me confidence that his urgency on the issue was similar to that expressed by colleagues on our Benches. Having considered his kind invitation for me to withdraw the Bill, I have decided that I do not wish to do so and I ask that the Question be put.

Question put, That the Bill be now read a Second time.

Fixed-term Parliaments Bill

Jacob Rees-Mogg Excerpts

Tuesday 18th January 2011 Commons Chamber

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

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss new clause 5—Expiry and revival of section 2—

‘(1) Section 2 expires when the Parliament summoned to meet in May 2010 dissolves.

(2) In the course of the first month of the day of first meeting of any Parliament after the expiry of section 2 as a result of subsection (1) above, the Minister may by order bring the section back into force for the remainder of that Parliament.

(3) An order made under subsection (2) above is to be made by statutory instrument and shall not be made unless a draft of the instrument has been laid before and approved by a resolution of the House of Commons.

(4) If no order has been made under subsection (2) above, an early parliamentary general election is to take place only if the House has passed a motion that there should be an early parliamentary general election.

(5) The polling day for an early parliamentary general election under subsection (4) above is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister.

(6) If a polling day is appointed under subsection (5) above, the reference in section 1(4) to the polling day for a parliamentary general election appointed under section 2(6) shall be construed as if referring to a day appointed under subsection (5) above.’.

[Jacob Rees-Mogg]

May I begin by thanking the Minister for the enormous courtesy, good manners and good temper with which he has responded to the many criticisms of the Bill? I, among others, do not think it the best Bill ever to have come before Parliament, but he has invariably answered questions kindly. I also thank the Clerks for warning me that I was, in their terminology, to “open the batting” in this debate, which I might not otherwise have known. As far as cricketing metaphors go, I am probably more of a night watchman than a Geoffrey Boycott, or Somerset’s own Trescothick, but I shall bat on with regard to the Parliament Act 1911 and my new clause in relation to it.

The 1911 Act, as the hon. Member for Chippenham (Duncan Hames) reminded us earlier today, was introduced, broadly, as a temporary measure. The preamble to the Act says:

“whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation”,

but “immediately” has now extended to 100 years of failure to introduce a popular rather than an hereditary form, although not all elements of heredity remain in the upper House. The 1911 Act still allows the House of Commons to get through major constitutional reforms that the House of Lords may oppose.

The reason for introducing my new clause to exempt purely the first section of the Bill—the bit that limits the life of a Parliament specifically to five years, rather than continuing with the flexibility that we have previously had—is that this is a crucial constitutional development that we should be careful about changing, willy-nilly, as coalitions come and go. Our constitution should be safeguarded and preserved; it is not something that should be treated lightly or in an airy-fairy fashion—and one thing that the House of Lords can do, and does extraordinarily well, is prevent that from happening.

By the way, it is notable that their lordships sat throughout last night, fulfilling their proper constitutional role of ensuring that a serious constitutional change is properly debated and reviewed. We in this House find that guillotines come crashing down upon our necks to prevent the detailed deliberation that some of us might like over a rapid raft of changes to the constitution, but their lordships—some of whom are not in their first youth—have stayed up overnight, battling for the great British constitution, which has served us extraordinarily well for hundreds of years. Looking upon their lordships as the guardians of the constitution is a good reason for ensuring that the measure cannot be changed without their consent and approval.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

I have listened quite attentively to the hon. Gentleman’s quite interesting opening remarks. Will he clarify something for me? If a party’s manifesto—I appreciate that this is a bizarre concept for Liberal Democrats—contained a plan to reduce the length of a Parliament, should the House of Lords have the opportunity effectively to veto the will of the people?

[Jacob Rees-Mogg]

That is a very helpful intervention, and I thank the hon. Gentleman for it. I think the House of Lords would almost certainly follow the Salisbury convention in that respect, and it would be wrong of it to go against the clearly expressed will, in a manifesto, of the lower House. The point of this measure is as a protection and a safeguard, not as a die-in-the-ditch stalling method to prevent any reform in future. It may be that, had I been around in 1911, I would have been all in favour of dying in a ditch to prevent reform, but I was not, and that is not the purpose of the new clause.

It is worth noting that the Bill is not subject to the Parliament Act 1911. The reason for that is that it extends the life of Parliament, potentially. It gives the Prime Minister the discretion—the ability—to extend the life of a Parliament from five years to a maximum of five years and two months. As we all know, the Parliament Act requires that that can be done only with the consent of the House of Lords, and cannot be pushed through if that consent were refused.

That leads me on to the reason why that was in the Parliament Act. Why was it thought sensible in 1911, when the Liberals were last in independent government—although they had some Irish help—to put in a clause that safeguarded the length of time that a Parliament could sit? It was done to prevent a tyranny of the lower House—to prevent a lower House from extending its life or changing its ability to serve for a particular time whenever it felt like it.

The relevant section is section 2, which states:

“If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons…”

So any Bill which extends the life of Parliament beyond five years is excluded from the functioning of the Parliament Act. That is relevant to this Bill, because it changes the basis on which the lifetime of a Parliament is calculated. It would therefore be logical to say that the safeguard in the 1911 Act should be extended to it too, so that it is clear that a new Government cannot come in and play fast and loose with the new Act. It would also give clarity to the Government’s purpose.

Many of us want to know whether the Act—or Bill, as it currently is—is about coalition and about two parties which, over a weekend in early May, were deeply distrustful of each other, or whether it is about major constitutional reform that it is thought will improve the settlement and the democracy of our nation.

The reason why I mention the weekend in May when the parties may have distrusted each other is that I have a feeling that that distrust has broadly evaporated. I think there is now great fellow feeling, at least in the hierarchies of the two parties, between the two sides that they work well together and are committed to some major reforms. The Liberal Democrats have made some admirable and brave decisions, particularly in relation to tuition fees, that have shown that their heart is in the right place in terms of the coalition, and how they have been willing to sacrifice part of their manifesto for it.

[Dr William McCrea (South Antrim) (DUP)]

Did the hon. Gentleman hear the severe criticism expressed by the Deputy Prime Minister at Deputy Prime Minister’s questions concerning the activities of the other House last night?

[Jacob Rees-Mogg]

The hon. Gentleman is right to raise that issue. I did hear what the Deputy Prime Minister said about the upper House. Most unusually—because in the spirit of coalition I usually find that I hang on every word of the Deputy Prime Minister in almost entire agreement with it—I had to divert from him on that occasion. I have always thought that Governments make a mistake when they think that they will always be in government, and therefore that it ought always to be easy to pass legislation.

I think it ought to be difficult to pass legislation, because we will not always be in power, yet we represent 40% of the electorate. Labour will not always be in power either, yet it represents 40% of the electorate. Those large minorities ought always to be taken into account—and the one power that they have is the power to delay. It was a great mistake of the previous Government to allow our proceedings to be so truncated. That means that now the present Government are, regrettably, doing the same on constitutional issues. That is the inevitable consequence of what happened between 1997 and 2010.

I would like to see the House of Lords maintain its ability to delay. “Filibuster” may be a good word. I am hoping that the hon. Member for Rhondda (Chris Bryant) will give us a definition of “filibuster”. He has given us regular definitions of the word “gerrymander”, and it is rather an expertise of his. I hope that “filibuster” may be defined later on.

I think it important that that right to delay be preserved, and that the House of Lords should have it. As I have said, that House has the crucial constitutional function of protecting our constitution from what Lord Hailsham referred to as elective dictatorship. I do not think that we have elective dictatorship, but I do not think that it would be impossible to get to it, and that means that we must preserve some elements of the constitution on which the House of Lords will have the final say, as if on an Act prior to 1911.

--- Later in debate ---

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

Does the hon. Gentleman imagine that the Government would be on such strong ground in trying to railroad things through without the support of both Houses if they had reformed the upper House before starting to tinker with this place?

[Jacob Rees-Mogg]

The reform of the other place will be a matter of great interest, although it is worth bearing in mind that the 1911 Act specifically states that it is to be in place only until the other place is reformed. When that time comes, this House will no doubt want to bear in mind how that Act can be reformed in response to the reform, depending on what is done to the other House. Some hon. and right hon. Members, and indeed some hon. and right hon. Friends, might be concerned about the powers that this House would lose if the 1911 Act were reformed wholesale.

New clause 3 has another important purpose. Lord Justice Laws, in the Thoburn case, which was well known in the popular press as the metric martyrs case, developed a doctrine of constitutional laws, in which he included devolution to Scotland. He would no doubt also regard an independence Act, too, as a constitutional law, which will be of interest to the hon. Gentleman who represents the Western Isles—I am afraid that I must still pronounce it as such, but I hope to learn. The European Communities Act 1972 is viewed as a constitutional Act, as is the Bill of Rights. Lord Justice Laws argued that those have a special place in the legal hierarchy and cannot be amended by implication. That means that they cannot be impliedly repealed, but only specifically repealed. That was quite a constitutional leap and a novel concept, but one that I think Governments have found useful, because it eases their path when changing other laws.

If we have developed this new view of constitutional laws that are superior laws—a sort of law greater than the ordinary Bills that this House and the other place pass—it seems to me that it would be better if that were decided by Parliament, rather than by the courts at a later date. That is one thing that the new clause would at least indicate. It would say that a Bill is so important and relevant, because it will determine how elections will be carried out, that it cannot be amended except with specific approval. Clearly, it would therefore be difficult for it to be impliedly repealed.

That brings me to the nub of the matter, and of the new clause. Constitutional change is the most important duty of this House, because when we change the cycle of election we change it in a way that means that we could have very different Governments. Just think what might have happened if we had had a general election in 2007. Who might have won if that had been the electoral cycle?

The right to an election is the fundamental right of the British people, with their democratic ability to decide who forms the Government, so can it possibly be right for one Government to come in and say of a Parliament, “It’ll be five years,” the next to come in and say, “Oh, actually, four years would be better,” and the one after that to say “Six,” which would still be covered by the exemption from the Parliament Acts, and to play around with the constitution—with the democratic rights of the British people—in a way that involves no checks on them and no ability to say that that is now the settled will of Parliament and of the British people?

I think that in the House of Lords, as it currently is or in any reform of it, we have absolutely the right body to say, as the hon. Member for Dunfermline and West Fife (Thomas Docherty) suggested, “Hold on. You did not have this in a manifesto. This is an inappropriate way of changing our constitution, without the consent of the British people and without a referendum, which might be a better way of doing it, so we are blocking you until you have had a referendum—until some big constitutional result has been found.” The Lords have done that before.

The House of Lords has been a block on constitutional reform, and that is a good thing. Some hon. Members might think that a peculiar thing to say, but it means that reform is properly thought through and developed. I am not going to go back to the exclusion crisis and Lord Halifax’s wonderful speech to prevent the Exclusion Bill going through, but that was a very early example of the House of Lords taking a strong constitutional stance, protecting the rights of an hereditary monarchy to follow the correct path and—the bonus from my point of view—being very pro-Catholic. Certainly, however, before 1832 the House of Lords blocked every reform, and it did so until it was clear that the whole of the British people wanted such reform to take place. Indeed, the Duke of Wellington realised that for the King’s Government to carry on, reform had to take place. After he put metal shutters in Apsley house because of the riots that had occurred, he knew that reform had to take place.

In 1911 even Lord Curzon eventually decided that the reform Bill had to go through, rather than having the House of Lords flooded with a whole new batch of peers who would have pushed it through—[Interruption.] They were Liberal peers. Most of them, however, become Conservative over the generations; it is the great advantage of the hereditary system. The Bill was deeply opposed. Lord Willoughby de Broke was one of the great leaders of the opposition to that reform, and the House of Lords has had that job and done it extraordinarily well, making sure that our constitution changes not as it has done in recent years—which is a grave error—according to the will of a small clique in Downing street, but because within it there has been some important flaw that, with the support of the whole British nation, has needed improving.

I do not think that my new clause will make this Bill perfect, because one cannot make a silk purse out of a sow’s ear, but it would at least make this sow’s ear one that could not be chopped up into sausages.

[Austin Mitchell (Great Grimsby) (Lab)]

Is not the hon. Gentleman’s panegyric on the House of Lords, and its great ability to defend our constitution by ensuring further discussion, really dedicated to defending the interests of the Conservative party?

[Jacob Rees-Mogg]

I think that I am defending just as much the interests of the socialists of Great Grimsby and other places, because it is not in the interest of the voters of Great Grimsby to have Governments who come in and play fast and loose with the constitution; that is a really bad idea. The hon. Gentleman has been a most distinguished advocate of less European intrusion in our affairs. [Hon. Members: “Hear, hear!”] As is obvious, he has the respect of the whole House for that, but Governments have been able to play fast and loose with our constitution in a European context because there has been no check from the upper House, and because anything, ultimately, can be jammed through under the Parliament Act 1911.

With this Bill, I want to begin to say—I have proposed the same change to the European Union Bill before the House—that such important constitutional changes need much deeper and broader support than that of some, to use the late Sir Robin Day’s term, “here today, gone tomorrow” politicians. We need constitutional change that is in the historic continuum of our great nation.

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

It seems to me that my hon. Friend is very ably saying that the Government cannot have it both ways. Either they believe in a Fixed-term Parliaments Bill that requires future Governments to fix their parliamentary terms, and should therefore accept the new clause and remove the room for manoeuvre, or this is just a Bill of political convenience, they do not want fixed-term Parliaments and intend to retain the flexibility.

[Jacob Rees-Mogg]

I am enormously grateful to my hon. Friend for putting pithily in one intervention what it has taken me, I fear, 20 minutes to say. He is absolutely right that Her Majesty’s Government cannot have it both ways. Either the Bill is serious and important, in which case it should be exempt from the Parliament Act 1911, or it is simply the contract for a marriage of convenience and so should fall at the next general election.

[Thomas Docherty]

I will keep my remarks suitably brief. I was fascinated by the introductory remarks of the hon. Member for North East Somerset (Jacob Rees-Mogg). I do not think that he had the pleasure, Mr Speaker, of hearing your October lecture to the Hansard Society on the Parliament Act 1911. Had he heard it—I believe that it is repeated continually at weekends on the BBC Parliament channel—he would have a much better understanding of the purpose of the 1911 Act. I do not propose to give a blow-by-blow account of that lecture.

I was interested by a recent interview that the hon. Gentleman gave to The House magazine—a fine tome that I am sure all hon. Members read. He described himself as a Peelite:

“I believe in free-trade, sound money and the state being less onerous upon the subject than it has been in recent years.”

Having listened to him with interest, I suggest, to extend the coalition metaphor, that he is more of a Palmerstonite, because Palmerston was a great fan of the Great Reform Act of 1832, as I am sure you know, Mr Speaker. He believed that the 1832 Act was, to use the American phrase, “a perfect union”, and that no further reform was required for the Houses of Parliament or the country. I cannot help suspecting that the hon. Gentleman would regard himself as being in the tradition that believes that the Parliament Act 1911 gave us a perfect union and that no further changes should be supported.

I was particularly concerned to hear the hon. Gentleman say that unless the whole country supported a constitutional change—I think that was the phrase he used—we should not have further change. I say to him gently that, despite the immense popularity of his Prime Minister, I cannot foresee a day in which even the great Conservative party will convince the whole country to support constitutional change. I suspect that he may be setting the bar a little too high. Traditionally, if this House is given a clear mandate by the people through a general election, that is regarded as sufficient impetus for a constitutional reform.

The hon. Gentleman rightly pointed to the exceptions in the Parliament Act 1911 for money Bills—it is interesting that his forebears in the House were keen to exempt the ability of Governments to push through the raising of revenue from the people—and for the lengthening of Parliaments. It is juggling with logic to equate the lengthening of Parliaments with the shortening of Parliaments. By its nature, that would lead to more frequent elections—which would probably be a good thing, as we saw today with the introduction of my hon. Friend our new Member for Oldham East and Saddleworth (Debbie Abrahams). When the people are given an opportunity to speak, they tend to speak loud and clear. If the hon. Gentleman’s new clause were accepted by those on the Treasury Bench, I fear that it would restrict the democratic rights of the people to hold elections to this place more often. For that reason, I fear that the Opposition could not possibly support it. Without making any further remarks, I will now let the hon. Member for Stone (Mr Cash) speak to his amendment.

--- Later in debate ---

[Mr Cash]

That is a noble aspiration, but I am not at all convinced that that is how it is intended to operate in practice, mainly because there are other people involved who are called Whips. Unless provision has been made for expiry, there will be a natural locomotion towards a future coalition, which I strongly resent, and towards fixed-term Parliaments, in the plural, and we will be in “a new kind of politics”. I see in their places at least one or two of my hon. Friends who, from what we read, would strongly advocate such a proposal. They have some constitutional ideas so perhaps they will elaborate on them during the debate. I rather doubt it, but we shall see.

New clause 5 is designed so that section 2 of the eventual Act will expire. It also provides for the circumstances that might obtain in the first month after Parliament has returned after a general election, when it might have a totally different complexion and composition. We have no idea who will be sitting on the Government Benches at that time. In that first month with Members reconvened for the first time—leaving aside the constitutional doctrine about successive Parliaments—would it be right for those Members to be saddled with something with which they did not agree? It is a simple as that. That provides another reason, quite apart from the constitutionality of the issue, for the new clause.

[Jacob Rees-Mogg]

Will my hon. Friend’s new clause ensure that after the next election, the Prime Minister, instead of going through the fiction of having a vote of no confidence in himself, could simply ask for a Dissolution by a vote of the House? If the new clause were accepted, would it not provide a much more straightforward way of getting an early Dissolution?

[Mr Cash]

That is a perceptive way of putting it; I congratulate my hon. Friend on his perspicacity.

I have great reservations about our movement towards what is seen as a new kind of political understanding. One of the great objections relates to the ease with which it is possible to break manifesto promises, enter into coalitions and then break them as well. Subsequently, a Parliament might emerge that embodied all the thinking of those broken promises in the form of a new politics. That next Parliament is then intended to carry on as if nothing had happened. I think that that is a very unsatisfactory way of governing, and a very undemocratic way of conducting our affairs.

--- Later in debate ---

[Chris Bryant]

Yes, although as the hon. Member for North East Somerset said at the very beginning of his speech, all this will become rather unnecessary once we have legislated for an elected, whether fully or substantially, second Chamber. At that point, elements of the Parliament Act, or even the whole Act, will almost certainly have to be reshaped.

[Jacob Rees-Mogg]

I absolutely understand the hon. Gentleman’s point that a Government elected on a manifesto for four years would not want to be obstructed by the House of Lords, and I doubt whether the Lords would obstruct them in those circumstances. Does he have any sympathy with the view that constitutional issues ought to have greater protection than ordinary Bills, particularly as judges have decided that there is a category of constitutional Acts? Should we decide that rather than the judiciary?

[Chris Bryant]

My general approach is that we should always seek to take decisions ourselves, rather than leave them to judges to take for us, because we are elected. However, the history of English common law and the way in which it has developed is such that judges have, by the precedents they have set, elaborated on that law. We have sometimes then decided to incorporate those interpretations into statute law, so there has been a constant relationship between the two. [Interruption.] My hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty) is muttering about Scottish law, but I am being very careful because I know much less about Scottish law than I do about English law, which also applies in Wales, so I am going to the edge of my knowledge and not a step further.

The hon. Member for North East Somerset is right that we will need, at some point, to put into statute law the relationship between this Chamber and an elected second Chamber, as we will want to establish that more firmly. Perhaps, as has happened in every other constitution that has been written in the world, special provision will be made for changing the constitution itself. In Germany, there has to be a vote of a certain majority in both Houses both before and after a general election. That was enforced by us in the writing of the German constitution after the second world war. In Spain, changes have been made to the constitution since the death of Franco, but the Spanish, too, can proceed only if there is a significant majority within the Cortes and the Senate. In short, my answer to the hon. Gentleman is yes.

In essence, my argument regarding new clause 3 is that it is not necessary and that it could be problematic for a new Government, because they might not be able to get their way even on a manifesto commitment that had been clearly laid down. The real danger concerns the extension of parliamentary terms—something that has always worried people in relation to the freedoms and rights of the British people, or rather the people of the United Kingdom. That is already protected in the Parliament Act, which will stand until we revise all these measures. Parliament has been extended in the past. That happened during the second world war when extensions were agreed on an annual basis. I am not sure whether that was voted on every year, but the hon. Member for North East Somerset might know.

Let me move to the new clause of the hon. Member for Stone. I note that the hon. Member for North East Somerset said that we have a choice between Scylla and Charybdis—he being Scylla and the hon. Member for Stone being Charybdis. My uncertain memory of Homer is that Odysseus chose to surrender a few sailors to Scylla rather than a whole ship to the whirlpool that was Charybdis, but I am in favour of Charybdis this afternoon.

--- Later in debate ---

[Mr Harper]

No; the Government’s intention is to change the system so that there are fixed-term Parliaments, apart from in the two possible cases set out in the Bill. We think that that is a desirable change. If the public and future politicians agree that it is desirable, it will stand the test of time. That is what we hope for and what we have argued for.

My hon. Friends the Members for Stone and for Harwich and North Essex raised concerns about the two procedures in clause 2—motions of no confidence and motions on early elections—that allow for early elections. However, the House of Lords Constitution Committee was fairly supportive of those measures.

The Committee said that it was

“sensible for the Bill to contain some form of safety valve which would allow for an early election in circumstances such as the government losing the confidence of the Commons or where a political or economic crisis has affected the country”,

and concluded that the safety valves that we had included were appropriate. The Committee also looked at the risk of the courts intervening, which my hon. Friend the Member for Harwich and North Essex mentioned, and concluded:

“The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small”,

adding:

“we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill.”

Based on what the House of Lords Constitution Committee has said, I, unlike my hon. Friend the Member for Stone, am confident that when this House approves the Bill, as I hope it will, and it is debated in their lordships’ House, they will give it proper scrutiny, but in the end give it a fair wind and pass it. However, if my hon. Friend presses his new clause 5 to a vote, I will urge all hon. Members to reject it and to keep clause 2 as it stands.

[Jacob Rees-Mogg]

I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

[Mr Cash]

rose—

--- Later in debate ---

[Nick Boles]

Of course I accept that, but it is not really what we are referring to. We are referring to non-legislative activity associated with forming a Government.

[Jacob Rees-Mogg]

Would that not be crucial? A new Prime Minister from another party would want all the Bills of the old party’s Prime Minister to fall. Prorogation would be beneficial.

[Nick Boles]

Exactly.

--- Later in debate ---

[Dan Byles]

I am grateful to the hon. Gentleman for correcting me. That was not my understanding, but I will bow to his superior knowledge. The French model has an interesting lesson to teach us about leaving the power to dissolve Parliament with the Executive, as opposed to the system that we are now considering. The President of France has the power to force Dissolution early, but that is not supposed to be the norm; it is supposed to be used only in an emergency. It has been used only twice in an emergency, in 1962 and 1968, but it has been used three times for political advantage—in 1981, 1988 and 1997—thus clearly demonstrating that if we leave such a power in the hands of the Executive, it will inevitably be used for party political advantage.

[Jacob Rees-Mogg]

The Bill still seems to allow the Executive to do that, because they can force a vote of no confidence in themselves. Therefore, what we are achieving is simply changing the rules by which an early election can be called, not making any fundamental change to the constitution.

[Dan Byles]

I am grateful for my hon. Friend’s typically pithy and interesting contribution. The point has been made by hon. Members on both sides of the House, and while my hon. Friend is technically correct, I find it hard to imagine that a Government who wished to call an early general election for their own political advantage would engineer a vote of no confidence that they would then lose on the Floor of the House, because that would be a disastrous start to a general election campaign.

--- Later in debate ---

[Dan Byles]

I am delighted that the hon. Gentleman raises that question, because I would like to address that issue, which is one of the “straw man” arguments that opponents of the Bill regularly cite. Some who oppose the Bill argue against the whole principle of fixed-term Parliaments, while others claim to support that principle, but tackle the issue of whether the term should be five years or four.

What should we make of the term set out in the Bill? I think that I am safe in saying that the term length is a key sticking point for Labour Members who accept the principle of fixed-term Parliaments yet still cannot bring themselves to support the Bill. Many of them hang their hat on the fact that five-year, rather than four-year, terms are proposed.

If we are to consider that point in detail, it is important that we understand where we are and how we came to be here. At present the maximum length of a Parliament is five years—let us make no bones about that—and I do not recall any recent cries of anguish from Labour Members that the historical five-year Parliament is wrong. Indeed, that maximum limit was established under the Parliament Act 1911, so Labour Members have had a long time to express their opposition to five-year Parliaments. The 1911 Act reduced the maximum length of a Parliament to five years from seven years by amending the Septennial Act 1715.

[Jacob Rees-Mogg]

May I remind my hon. Friend that the reduction from seven to five years took place because the House of Lords was no longer able to block legislation, and it was therefore thought right that things should be referred to the electorate within a reasonable time? In 1911 Members thought that that period was five years, and what they thought in 1911 is a jolly good thing to think in 2011.

[Dan Byles]

As ever, I am extremely grateful to my hon. Friend for his point. He and I believe that the wisdom of our forefathers should not be lightly dismissed.

--- Later in debate ---

[Dan Byles]

I am grateful to the hon. Gentleman for his intervention.

[Jacob Rees-Mogg]

It may interest the House to know that in the 1830s King William IV was going to come in person to prorogue Parliament, because that would bring all business to a stop and the Government did not like the business that was going on. I believe that, in the end, that turned out not to be necessary.

[Dan Byles]

I am extremely grateful to my hon. Friend for his intervention. Again he demonstrates why it is so important to maintain a thorough understanding of history if we are to understand exactly what our position in this place is in the context—

European Council

Jacob Rees-Mogg Excerpts

Monday 20th December 2010 Commons Chamber

[The Prime Minister]

I know lots of people in Turkey I would willingly swap with the hon. Gentleman. Maybe we could have a transfer. I would make a serious argument, however, which is that, if we want the European Union to be a force for stability in our world, we should try to include a country that wants to look to the west, is a democracy and wants to be part of the European economy. All those would be great advantages for the European Union.

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

Will the Prime Minister clarify whether the minor treaty amendment will specifically exclude Britain from any liability, or whether that will merely be implied? Will he also ensure that article 122 is never used again for that purpose under the treaty? The reason I ask so specifically is that the previous practice of Europe has not always been to do precisely what it has implied it might do, and we really want to have that nailed down.

[The Prime Minister]

I think my hon. Friend asks absolutely the right question, because there is a history in Europe of such agreements not always being stuck to, and of there being a rather federalist ratchet. That was why I was very clear that we needed language, not just in the European Council conclusions, about article 122 not being used in future. I actually wanted it in the article that will be presented to this House for us to look at as a treaty amendment, so, in what is called the recitals—don’t worry, I’m not going to start singing—or the introduction to the article, it says:

“As this mechanism”—

the new mechanism—

“is designed to safeguard the financial stability of the euro area as whole…Article 122…of the TFEU”—

the treaty on the functioning of the European Union—

“will no longer be needed for such purposes. Heads of State or Government therefore agreed that it should not be used for such purposes.”

That seems to me to be quite a good belt and braces—no need, no use; and it is not just in the Council conclusions, but in the introduction to the treaty article itself.

Independent Parliamentary Standards Authority

Jacob Rees-Mogg Excerpts

Thursday 2nd December 2010 Commons Chamber

[John Mann]

I can tell the hon. Gentleman that the amount of time that my staff and I have to spend on the system is greater than it was before, but I recall the system as it was before. As we have learnt from what has emerged, in those days a signature would do, and the scandals that followed made it clear that that was not sufficient. No organisation in the country that experienced such a level of scandal related to expenses would not have introduced a requirement for every box to be ticked and every receipt to be monitored. We cannot set ourselves a lower standard than we would expect of any corporation, or any other part of the public sector out there.

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

I would have supported the hon. Gentleman’s amendment had Mr Speaker called it, because I thought its tone admirable. My point concerns the independence of any regulator of a sovereign Parliament. The difficulty is that, although that regulator may be independent in title, what the House of Commons gives by legislation it can take by legislation. Constitutionally, therefore, IPSA cannot be independent of Parliament—and nor should it be, because if it were independent of Parliament, it would be independent of the British people.

[John Mann]

I do not think that that would be an accurate constitutional point if there were a constitution. Parliament has powers to meddle with the courts. Parliament has the power, for example, to meddle with any piece of legislation. The question is whether Parliament should cede authority over the administering of, and the meddling with, such implements.

Parliament could, at some stage, decide to abolish, but my amendment seeks to influence by threatening to abolish, which in some respects is even more invidious than simply moving to abolish. For the House to suggest, six months into a new system, that that system is too onerous to allow Members to do their job properly is absurd. Legitimate criticisms can be made on grounds of both bureaucracy and expense, but we should not reverse the principles of a decision made so recently. I warn the House that if we do, the wrath of our constituents will rightfully fall on us, because we will be saying, “The bad old days were not that bad. We will create the system that we want to fit us.” [Hon. Members: “People are not saying that.”] Actually, people are saying many different things about the expenses system that would suit them and their position best. That is the problem with creating expenses systems: we have different constituencies, and experience different circumstances in different parts of the country.

Fixed-term Parliaments Bill

Jacob Rees-Mogg Excerpts

Wednesday 1st December 2010 Commons Chamber

[Mr Harper]

Yes, it is.

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

I cannot think of an example of such a position since the reign of Queen Victoria, who refused to accept Robert Peel as Prime Minister, and I think it inconceivable that it would arise in a modern constitution.

[Mr Harper]

I did say that there would have to be an extraordinary set of circumstances for the Prime Minister to behave in such a constitutionally outrageous way. They would be circumstances in which a Prime Minister was abusing and stretching the constitution in order to stay in office and avoid the consequences of losing a vote of confidence in Parliament.

[Jacob Rees-Mogg]

I think that that is extraordinarily unlikely. It is theoretically possible that the Queen could refuse assent to a Bill, but that has not happened since the reign of Queen Anne. Such constitutional anomalies remain theoretical, but so theoretical that it is inconceivable that they would arise whatever the emergency. I really feel that to rely on that for the passage of the Bill is most unsatisfactory.

[Mr Harper]

I am not relying on it for the passage of the Bill. I was referring to the issue raised by my hon. Friend the Member for Epping Forest, who last week, on behalf of the Political and Constitutional Reform Committee, raised some potential scenarios with which she was uncomfortable. I believe, and the Government believe, that those scenarios are indeed, as my hon. Friend says, theoretical, and extremely unlikely to happen. My point is that if a Prime Minister behaved unconstitutionally in such a theoretical and extremely unlikely way, a mechanism that already exists would be invoked. However, the Government contend—and I agree with my hon. Friend on this—that both sets of circumstances are highly unlikely. It is our contention that the eventuality to which my hon. Friend has referred would not be necessary, because a Prime Minister would not behave in a way that stretched constitutional convention to breaking point.

--- Later in debate ---

[Mr Jenkin]

Sorry, 1689. My hon. and learned Friend will keep me up to the mark, because he is much more of a lawyer than I am.

In recent years, however, the tension between the courts and the independence of this House has been thrown into relief. I remind the Committee of cases such as the one brought by Lord Rees-Mogg for judicial review of the ratification of the Maastricht treaty after this House had passed an Act of Parliament.

[Jacob Rees-Mogg]

I would like to clarify that the judicial review case brought by my noble kinsman was not in any way to challenge what had happened in this House. It was to challenge the use by Ministers of the royal prerogative, which is why the judicial review was allowed by the courts.

[Mr Jenkin]

I stand corrected—again. I fear that that may occur rather often during my presentation. The case relating to the Hunting Act 2004 was certainly an attempt to impede the free functioning of Parliament in its judicial function. In addition, an attempt was made to judicially review the lack of a referendum on what was then the Lisbon treaty. There are other examples of that tension, not least over the arrest of my hon. Friend the Member for Ashford (Damian Green), and I believe that only today, in connection with another matter, are the limits of the courts being resolved.

The present situation begs for something that many have recommended for some time: that this Parliament should have a privilege Act to delineate clearly the immunities of Parliament in relation to the functioning of the courts, but we are in an even more tense situation because we are arranging our constitution in other areas that question the very sovereignty of the House. We now have a Supreme Court and it is widely known that many jurists who serve at various levels of the judiciary take differing views of the notions of parliamentary sovereignty and parliamentary privilege. There was recently a case concerning the possible effective expulsion of an hon. Member as a result of a judicial decision. I do not comment on its merits as it is still sub judice. I merely advert to the fact that it represents another testing of the boundaries between the courts and Parliament.

We are told not to worry—the Bill’s provisions are immune from the courts, and nobody is going to interfere in what we decide is a Speaker’s certificate, certificating a vote of no confidence that satisfies the majority. When we are blandly and bluntly told that by the Government and at the same time told by the Clerk of the House who has bravely and independently—in his constitutional capacity as an independent guardian of our constitutional arrangements—issued a memorandum, to which I shall refer later, that flatly contradicts the Government’s view, we are obliged to take the matter very seriously.

I cannot think of a precedent, other than the Parliamentary Standards Bill, where a Government flatly refused to accept the advice of the Clerk of the House on a question of the potential justiciability of legislation before the House. The Bill before us is a major change to the constitutional settlement of this country, and it is backed by people in the Government who we know favour a written constitution—an entirely different constitutional settlement. That raises the question whether the Government have got it right when they say that the Clerk’s fears are to be disregarded.

With the indulgence of the Committee, I shall quote rather extensively from the memorandum submitted by the Clerk as written evidence to the Political and Constitutional Reform Committee. He states that the Bill is

“to make statutory provision for matters which fall within Parliament’s exclusive cognizance and which may affect the established privileges of the House of Commons as well as upsetting the essential comity which has been established over a long period between Parliament and the Courts.”

Erskine May makes it clear that “cognizance” refers to the right of both Houses

“to be the sole judge of their own proceedings, and to settle—or depart from—their own codes of procedure.”

The Clerk is clear in a bald statement in paragraph 12 of his memorandum:

“The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates.”

He goes on to explain how that occurs under clause 2(2), which we have already debated. In paragraph 16 he states:

“The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.”

That should be obvious. We know that Crown prerogative, as exercised by the Prime Minister, is subject to judicial review. We know that statute is subject to judicial review. We know that proceedings in the House and Standing Orders have not hitherto been subject to judicial review or judicial question. The Bill provides a connection between what happens in the House and in the rest of the world. We are providing a bridge of law that brings the courts into the House.