European Union Bill

Debate between Jacob Rees-Mogg and Austin Mitchell

Tuesday 8th March 2011 Commons Chamber

[Jacob Rees-Mogg]

The hon. Gentleman has half got what I have been saying and has half misconstrued it. I do not think it right that laws passed by Parliament should be put on a different level based on what judges think of them retrospectively. I do not think that that is a democratic way of deciding which law is important and which is unimportant. One may think that the judges will always get it right, but what if they decided that the Dangerous Dogs Act 1991 was amazingly important and this Bill was not, so that the 1991 Act could not be impliedly repealed, but one giving people a vote in a referendum could be? What I am saying is that it is better for us to take this power upon ourselves and say, “Okay, this is an important Act. We’re going to put that in, and say that it is exempt from the Parliament Act 1911.”

The hon. Gentleman asked a good question, which is: why start with this particular Bill? The reasons for starting with this Bill are, first, that the judgment putting the 1972 Act on to a higher plane is relatively recent, and secondly, that I was elected to Parliament only last May and have therefore not had the opportunity before to propose such a measure on a major constitutional Bill, other than the Fixed-term Parliaments Bill. The reasons for starting with this Bill are because of that judgment, and because I am now in a position to do this. It would have been a good thing to do earlier, on other constitutional Bills, including on devolution to Scotland.

[Austin Mitchell (Great Grimsby) (Lab)]

I am always impressed by the hon. Gentleman’s displays of legal knowledge, but surely his whole point is spurious. The judges’ argument is irrelevant and wrong: there is no distinction between some laws passed by Parliament and others. We cannot say that some are constitutional and others are not. That distinction does not exist: they are all of equal standing. The point that he is trying to make is also irrelevant, because he is appealing to a constitution that does not exist. Essentially, the British constitution is what Governments can get away with, and they get away with it in this place.

[Jacob Rees-Mogg]

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

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

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

Fixed-term Parliaments Bill

Debate between Jacob Rees-Mogg and Austin Mitchell

Tuesday 18th January 2011 Commons Chamber

[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.