Fixed-term Parliaments Bill

Richard Shepherd Excerpts

Wednesday 24th November 2010 Commons Chamber

[Mrs Laing]

Once again, I bring to the Chamber the apologies of the hon. Member for Nottingham North (Mr Allen), the Chairman of the Select Committee on Political and Constitutional Reform, for his absence. He is, unfortunately, unable to be here, but I assure hon. Members that he is probably watching proceedings and that he will be better soon. He is still carrying out his duties as Chairman, but it is difficult for him to be here in the Chamber.

I am pleased to move the amendment tabled by the Select Committee, or at least some members of it. It concerns the House’s procedure for determining the way in which an early election can be called. I, personally, do not support its wording and I shall not insist on putting it to a vote, and if others do so, I shall not vote for it. There is nothing wrong with that, as I am merely moving it. It forms an important part of the Select Committee’s pre-legislative scrutiny of the Bill and, as such, it should be put before the Committee so that it can be properly discussed.

The amendment reflects some of the arguments that were heard during the Select Committee’s inquiry into the Bill. I simply wish to ensure that hon. Members have the chance to examine these important issues. The amendment proposes an alternative way of bringing about what the Government seek to achieve in clause 2. It does not oppose the Bill’s aims in any way, but simply proposes an alternative that hon. Members should consider.

As an alternative form, the amendment would have three advantages. First, it would avoid the risks involved in implementing the Government’s proposal that a two thirds majority should be required for a vote to have effect. Secondly, it would avoid what the Committee described as the “uncertain” consequences of the provisions in the Bill on motions of no consequence—[Laughter.] That was a visual rather than a grammatical problem, and if the Committee will forgive me, I shall try again. I meant to say motions of no confidence, which would include the possibility of a Government

“subverting the purpose of the Bill by tabling and voting for a motion of no confidence in itself in order to trigger an early general election without the need for a super-majority.”

Thirdly, the amendment would largely deal with the concern of the Clerk of the House, articulated to the Select Committee, that this part of the Bill would infringe the House’s “exclusive cognisance” over its own proceedings—its right to decide for itself how its business should be done, and the concomitant principle that the courts will not interfere. When the Clerk told us of his concerns, we shared them, so tabling the amendment allows us to consider those real and well-founded concerns. I am aware that other amendments that we shall discuss this afternoon would deal with the situation in different ways, but amendment 33 proposes a simpler way of getting around those concerns. It would ensure that an early general election could take place only with cross-party support.

[Mr Richard Shepherd (Aldridge-Brownhills) (Con)]

I am sorry to intervene at such an early stage of my hon. Friend’s comments, but I notice that proposed new subsection (2)(b) states that

“each member of the House of Commons who at the time of the motion being made is the registered leader of a registered party that received more than 20 per cent. of the total votes cast at the previous parliamentary general election.”

Those are the people who are supposed to decide whether there will be a confidence motion. What does my hon. Friend feel about the fact that the proposal will disfranchise the representatives of between 3.5 million and 4 million people?

[Mrs Laing]

I appreciate my hon. Friend’s point, and I find myself in some difficulty. I am happy to respond to it, but of course I agree with it. I am proposing the amendment not because I am passionate about it, but simply so that the Committee can discuss it. He is right to raise one of the issues that should be discussed. I take it that he means people who are represented by parties such as the nationalist parties. In that respect, if the amendment were accepted by the Committee and by the Government and if it became part of the Bill, I would find myself wishing further to amend it, to the effect that the parties concerned should be those that received more than 20% of the vote in the nation in the United Kingdom where their candidates stood for election. I hope that answers my hon. Friend’s question. However, I do not think we need to go into that in much greater detail.

The amendment provides that an early general election would take place only when the House agreed by a simple majority to a motion in the name of the Prime Minister, tabled with the agreement of the Leader of the Opposition and the leader of any political party that had received more than 20% of the national vote at the previous general election, with the extra proviso that I have just added in response to my hon. Friend’s well-made point.

--- Later in debate ---

[Mrs Laing]

Indeed. I am grateful to the right hon. Gentleman. Once again, the details of proposed new subsection (2)(b)—that is not

“To be, or not to be”

—we are going back in again! I do not think we need any more Shakespeare, and I will be called to order if I go any further down that road.

The matters identified by the right hon. Gentleman would have to be considered in more detail if the amendment were to become part of the Bill. I predict that the Minister will not accept it. As I said, I hope not, because I would have to vote against it and as the Committee knows, I am uncomfortable voting against my Government and the Minister. The amendment does not have to become part of the Bill, but the points made to the Select Committee by the Clerk of the House are serious and important, and the Committee will wish to be reassured that the Minister has considered them.

[Mr Shepherd]

Is not the difficulty for my hon. Friend and those on behalf of whom she is promoting the amendment that they have put it in a statutory form, whereas the Clerk’s solution was that it should be in the form of Standing Orders of the House? To read across is not possible. On the face of it, the amendment looks absurd, so I am puzzled why it is even before the Committee.

[Mrs Laing]

Let me explain further. The Select Committee rushed through its pre-legislative scrutiny process, because of the timetable for the publication of the Bill, Second Reading and Committee. Inevitably, the Select Committee had to take evidence and consider matters quickly and briefly. It is important that the issues considered by the Select Committee are put before the Committee. I have every confidence that the Minister will assure the Committee in due course that he and his colleagues have considered all the points made in the pre-legislative scrutiny report by the Select Committee.

--- Later in debate ---

[Mr Cash]

I will now move on to the very question that is being discussed, which is motions of no confidence and what they really mean. There are various permutations, which are well described in the Library note, but the issue for me is basically this. In my belief—and according to the House’s tradition and its conventions, which are now to be overtaken by statute—a majority of one should remain. However, in that 14-day period, with shenanigans worthy of Lord Voldemort and the servants of the Dark Lord, an attempt would be made to keep in power a Government who had lost the confidence of the House of Commons—that is, the representatives of the electorate. That attempt would keep the Government on their feet, while the public would be left watching the spectacle of streams of members of the Cabinet and prospective members of the Cabinet from the Opposition parties striding up and down Whitehall, in and out of offices, all under the baleful influence of the Cabinet Secretary, as they tried to hatch yet another coalition agreement, no doubt based on very different principles from those for which the electorate had voted, in accordance with the parties’ respective manifestos or—dare I use the words?—their promises.

As to the question of what confidence motions actually are, they are various. In 1945 it was Churchill versus Attlee, and the Government won. Then there was Attlee against Churchill in 1952, and Gaitskell against Eden in 1956, when the Government won again. There was also Wilson against Heath in 1972, on the European Communities Act, when there was thought to be quite a lot of manoeuvring on the question of whether there had been a free vote or not. I will not go down that route now, but examples of where the Government have lost confidence motions include the Liberal Government of 1895, the Baldwin minority Conservative Government —note: minority Conservative Government—in 1924, the MacDonald Government in 1924, when there was again a Dissolution, and, of course, the famous Callaghan defeat by Thatcher, by 311 votes to 310.

[Mr Shepherd]

I am getting increasingly impatient in one sense, but on the distinction between what is a confidence motion and what is not, I put this proposition to the Committee. If the Government lose the Budget, that is it. My understanding of our constitution is that that would be the end of the Government.

[Chris Bryant]

indicated dissent.

--- Later in debate ---

[Mr Shepherd]

Well, Governments have resigned on the loss of such votes. Therefore, what constitutes a motion that arrives at that result? What my hon. Friend has been quoting were dates, not motions.

[Mr Cash]

It is very rare that I say this, but I do not agree with my hon. Friend about that, because although those are dates, they are also about matters of huge political significance to the country at the time.

[Mr Shepherd]

That applies to the Budget.

[Mr Cash]

Indeed, and my hon. Friend is right on that point, because it is not just about the business; in my judgment, it is about the sense of feeling in the country and the outrage in the House about the policies that are being pursued.

--- Later in debate ---

[Mr Cash]

Indeed, but that was about the sense of outrage over what had been done. That could apply to a Budget, as my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) said, or to any other situation. It could have applied to Suez or, for example, the Iraq war. For all those reasons, the confidence motion, in whatever terms it is expressed, is just that: do those voting in the House of Commons at the time, by a majority of one, have a sufficient degree of confidence in the behaviour and policies of the Government?

[Mr Shepherd]

I am grateful for my hon. Friend’s tolerance in giving way again, but the outcome of the vote in 1940 was the resignation of the Prime Minister, not the Government as a whole. Although the Government went with him, they reformed themselves, so what happened was not an electoral matter; it was the outcome of a confidence motion in the individual who headed the Government.

[Mr Cash]

I agree with my hon. Friend on that, but there was also the sense of outrage that was being expressed. As that occasion has been raised three times already, let me mention in passing that, as it happens, it took place on the day that I was born, but there we are.

What does such innovation say about the coalition? It certainly demonstrates its determination to stack the cards firmly in favour of the coalition and the Whips. There may well be one third whom the coalition cannot take for granted or persuade, but I fear that that attitude is taking power away from Parliament—which, after all, is made up of the representatives of the people—and not giving it back. If the same principle were followed for any other motion, Parliament would simply not be able to carry out its business. I fear that what is proposed is not modernising, but is a reactionary measure. It is not progress, but a step backwards, along the primrose path, undermining the constitutional principles that have governed our conventions and been tested over many centuries. The proposal has been conjured out of thin air, for the ruthless purpose of maintaining power irrespective of the consequences. In my opinion, it is a great shame that it has been put forward on the proposition that—as was said in the general election and at the conference that took place recently—we are supposed to be “Working together in the national interest”. I fear that on this Bill, on this matter, we are working together against the national interest.

--- Later in debate ---

[Mr Shepherd]

Might that lack of clarity be a mark of the wisdom of past generations? They knew when it had happened that a Government were not sustainable, and they knew when it had not happened. The mood of the House in relation to that of the country was an open question.

[Chris Bryant]

I am not sure that that is true. It depended on the Crown—that is, the Government or Executive—retaining the power to dissolve Parliament. I do not think that a measure that was considered to be a motion of no confidence in 1866—namely,

“to leave out the words ‘clear yearly’ and put ‘rateable’ instead thereof”—

would be considered to be one today, and I therefore think that it would be inappropriate for that power to remain.

--- Later in debate ---

[Chris Bryant]

Or she. I thought I just heard my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) speaking in my ear.

If that Prime Minister felt that it was essential in the interests of the nation that there should be an early general election, the Government would be prepared to bypass and use every trick in the book to secure an early election. They might well have this Bill in their back pocket as a means of achieving that. So although this Government were supposedly trying to release the grip of the Executive, they would have enhanced it.

I want to reaffirm our commitment to fixed-term Parliaments. That means that we have to lay down in statute that it is for the House, not the Prime Minister, to dissolve Parliament. It should also be for the House to decide the precise date of the general election, which should be in statute, and we should have only one process of calling an early general election. We must be clear that the Government need always retain the confidence of the House of Commons and that should be written in statute now.

For most of the 20th century, we have had very few hung Parliaments, but I suspect that there might well be more in future. We need to ensure that our provisions will stand the test of time rather than simply being drawn up to appease the coalition agreement.

[Mr Shepherd]

Mr Hoyle, I have a point of inquiry following your response to the Opposition’s Front-Bench spokesman, which is about the stand part debate. As the amendments are theories in concatenation, it is difficult to address an amendment in isolation without reference to a wider context.

[The Chairman]

It is unlikely, not ruled out. The other point is that I am not sure that we will even get there. At the rate at which we are going, we have quite a while to go yet.

[Mr Shepherd]

Thank you, Mr Hoyle. I shall start with my first observation, which is that the test of each clause in both of the constitutional Bills is to ask in what way it enhances the role of the people in relation to Parliament. The answer, again, is that this does not. The measures are meant to be an internal reorganisation of the rules and regulations of the House of Commons effected through statute. We have had advice from the Clerk of the House that, if challenged, it will be open to judicial interest and the views of the courts. Historically, this matter has always been determined within these precincts and so the question of what we call parliamentary privilege is particularly germane to the Bill. I am very concerned about that. I make the perhaps minor observation that in a struggle between a new Government without a mandate and the House of Commons authorities, who are appointed by the House, I would back the advice of the House rather than that of the politically motivated and interested Government of the day. I do not dismiss the Clerk’s memorandum or accept the response to it, which is effectively like that television sketch “Computer says no.” That is an extraordinary and very undignified response to the Clerk’s advice on something that is of the greatest importance to Members of the House, and through them, citizens’ rights, activities and freedoms.

My next point concerns the accumulation in clause 2 and the proposed amendments to it of purposes, or distinctions between ways of dissolving Parliament. These measures have shifted my position from benign acceptance of the concept of a fixed Parliament to one of questioning whether there was not greater wisdom in the proceedings and processes that we had before. These measures worry me enormously. My hon. Friend the Member for Epping Forest (Mrs Laing) generously moved an amendment in which she has no confidence in order to test a proposition, and she did test it—to destruction. On examination, the amendment is too threadbare and offends the very conscience of why we are here. It suggests that some Members’ views on whether a Parliament should stand or not should be disregarded because they do not have a party leader who represents a certain number of votes. I do not know how such an amendment got through the Select Committee but I think it was to form the basis of some sort of standing order that could be cooked up to meet the point about judicial inquiry into the purposes or nature of the Bill.

Let me make another point about motions for an early election or of no confidence. We have tickled, argued and considered across the Chamber the way in which Mr Callaghan accepted that there had to be a general election, but that was nearly at the end of a five-year Parliament. There was very little scope beyond going the few months left, but he stood up immediately and said, “There will have to be a general election.” I remember the perfervid moments of the Maastricht debates and the subsequent consequences of a Government who had a very small majority wanting to increase the rate of VAT on domestic fuel. The motion was to be vehemently opposed by people such as myself, who had lost the Whip, but not just because of that—it was an opposed measure. It could not have fallen but for the support of Conservative Members who took a broader view on it, and it did fall.

The argument that was put by the bastion of the 1922 Committee and the Whips, of course, for they have an argument for all seasons, was that if it fell, the Government would fall, and that the solemnest duty of any Conservative Member was to support the measure because the confidence of the House stood in the Budget. I shall always have a soft spot for the Justice Secretary—then the Chancellor—because when he lost the vote, he said, with that famous giggle, “Oh, we’ll have to have a corrigendum Budget.” We duly had one on the following Thursday. I am really talking about the pressure that was put on Back Benchers, because we were told that the Government would fall.

If I had stood in front of my constituents at the general election and said, “I’ve got two little measures. The short title of one of them is the Fixed-term Parliaments Bill, but the long title seems to contradict that concept,” they would have been bemused. If I had then started talking to them about the nature of confidence votes and motions for an early election, they would have been struggling. We were entering an election and they knew what it was about; there was a crisis. There was a huge public deficit and anxiety about jobs, yet here was Shepherd of Aldridge-Brownhills troubling them with the notion that

“each member of the House of Commons who at the time of the motion being made is the registered leader of a registered party”

and so on. If I had done that, my constituents would have thought, “Well, he’s been with us a long time,” and they might have made a different judgment in the election.

The measure has no mandate. I have opposed other constitutional measures, but however wrong I thought the balance of the argument was for the detail of the Scotland Bill proposed by Labour, no one could say that there had not been a national convention on it. There was no political party in Scotland that had not long resourced such a measure. I recall John Smith’s role and that of a whole series of people. They were alert and alive to the issue. No one could claim that there was no mandate for the reforms and changes that took place under the sovereignty of this Parliament to create a Scottish legislative structure and to pass powers to Scotland. The constitutional developments in Wales and Northern Ireland were similar.

Those measures could claim a mandate. The 19th century is often cited, but these are long struggles. I was a little riled by the Labour spokesman because he referred to the 18th century. It is proclaimed that the glory of the House is reflected in our coming to the democratic age—it is rather like dividing up what happened in a great empire—but the democratic age is fairly fresh and young and new. It did not really start until the 1860s. That was when political parties were formed and there was a more regimented approach to the management of the House—not easy to do. There was a glorious extract from the London Illustrated News next to the office of my hon. Friend the Member for Stone (Mr Cash)—I now know where Pericles found the stones to get over his lack of confidence. The extract was from the Queen’s Speech—then Her Majesty Queen Victoria. The burden of it was to say, “This parliamentary Session”—well, this particular parliamentary Session will last for ever, but apart from that—“Her Majesty’s Government will concentrate on foreign affairs. It will leave domestic legislation to the House.” Just like that. That is a world away from where we are now—where the Government have to fiddle and twiddle, and do everything at the behest of a very informed—

[The Chairman]

Order. The hon. Member for Rhondda (Chris Bryant) also gave us a history lesson and had to be reminded to come back to the amendment. I am sure that the hon. Member for Aldridge-Brownhills (Mr Shepherd) would prefer to stick to the amendment. I realise that we can broaden things out, but we are going a little bit too far from the measure.

[Mr Shepherd]

Of course, I joyously do that. Implicit in every line of the measure is the management of the House. That is the only reason why I diverted slightly to recall the London Illustrated News.

[Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)]

The hon. Gentleman is making another fine speech, which I am always glad to hear. He spoke about the mandate for constitutional change and the previous mandates that previous changes have enjoyed. Does he agree that it is important to have a mandate not only to introduce a change in the constitution such as that proposed, but to entrench it? Without such a mandate, is there not a danger that future Governments may feel that they have the authority to introduce such constitutional changes to their own benefit, much as the present Government are seeking to bring in a constitutional change through the measures in the Bill for their own benefit?

[Mr Shepherd]

I like the young new Member vigorously advancing an argument that I find so convincing.

The measure is not appropriate for a serious democracy. Clause 2, as my hon. Friend the Member for Stone said, is an endeavour to entrench. It is as simple as that. We cannot ignore a wider picture of what is going on. At this moment, loyal and good dinner guests of those who run my party are marching into the Lords to take their place. Their doing so means that when the Bill comes to be voted on—remember, the other House that has to deal with that is the Lords—the numbers able to vote on it in the Lords in the Conservative and Liberal Democrat interest will have increased exponentially.

Overall, the Bill—clause 2, the other clauses, the Speaker’s certificate, the idea of a registered leader of a registered party and so on—is, if not humbug, then designed to defeat the very purposes that most of us in the House want: an open, democratic House. I know that this is difficult in politics, but my Conservative colleagues should listen, understand and think about the 200 very new Members in the House who are going to change a constitution without any reference point other than party loyalty. Party loyalty to what? No mandate? They are going to march blindly through the Lobby at the behest of the concept of party, when in a coalition that is a very different matter.

I shall certainly vote for amendment 4, and I hope there will be many who take that course.

[Mark Durkan]

Many valid arguments have been made about this group of amendments by a number of right hon. and hon. Members. I have total sympathy with the cynicism that has been expressed about some of the devices in the Bill and the motives for them.

However, I believe totally in the idea of a fixed-term Parliament and have supported amendments that clearly stated “fixed term”, although I believe that the term should be four years, rather than five. I have to ask myself, as all of us as legislators and members of the Committee must ask ourselves, if we do not like the present provisions, what is our alternative that would mean that we have credibly passed a Bill for fixed-term Parliaments? That is where I part company and cease to be persuaded by some of the arguments that I hear in respect of some of the amendments.

With reference to cynicism about the motives, a number of hon. Members have articulated the basic nature of the Bill. It is the means by which the two coalition parties have created a statutory harness to keep them together for this Parliament. It is, in essence, a fixed this-Parliament Bill, rather than a Fixed-term Parliament Bill. It is designed to solve the conundrum of either party collapsing the coalition. The Parliamentary Voting System and Constituencies Bill is for fixing future elections. This Bill is about fixing this Parliament.

If I want the Bill to be a Fixed-term Parliament Bill, I have to be judicious about its content and any amendments that I might support. That is why I have some questions about some of the amendments that have been so articulately presented today.

The hon. Member for Epping Forest (Mrs Laing) presented amendment 33 with a white flag and in a very novel way, which just goes to show that it is entirely possible for people to present themselves in all sorts of ways in the House. People say that a Government would not use or exploit in any way a no confidence motion against themselves, but any available device will be used in any particular circumstances. That is the nature of politics.

The hon. Member for Rhondda (Chris Bryant) spoke to amendment 21 and made a strong case for an “immediate” as opposed to an “early” general election. The only problem is that if “immediate” can mean only six weeks, as he said to the hon. Member for Na h-Eileanan an Iar (Mr MacNeil), what happens if, for example, we are close to Christmas—perhaps the middle of November—notwithstanding that allowances will be made for holidays? If we are truly to take account of media coverage and other activities during that time, is it credible to confine ourselves to six weeks and six weeks only? Clause 2 as it stands allows for consensus in the House on the need to bring forward considerably the due date for an election, and people might do so conscious of current and pending events.

Another hon. Member mentioned the situation in Dublin at the minute, and many people would say that, although confirmation of an early election there has helped to clear the political air, going for an immediate election might cause more market turmoil not just for Ireland, but for others. There are times when we need to leave ourselves and this House the room to make a distinction between “early” and “immediate”.

--- Later in debate ---

[Tristram Hunt]

I could not agree more with the hon. Gentleman, and I will come to the Supreme Court in a moment. I do not want to interfere with his amendments on the Speaker’s certificate, which are absolutely correct. My hon. Friend the Member for Wrexham (Ian Lucas) referred to the Digital Economy Act 2010, and the Hunting Act 2004 was also reviewed in court. Yes, the court ruled that it could not interfere with the Act, but it had to go to the Law Lords for that supposedly self-evident truth to be confirmed. Even there, the judgment was hardly a ringing endorsement of parliamentary sovereignty, which is what amendment 33 seeks to retain.

[Mr Shepherd]

The process of getting to the courts takes time, and obviates the timetables in the Bill.

[Tristram Hunt]

The hon. Gentleman is of course correct. There will be extra layers and extra opportunities for lawyers to intervene. It was no wonder that Lord Steyn commented in the light of the Hunting Act 2004 that it

“is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism”.

I think that in plain English that means they would be interested to get their teeth into the proceedings in this place.