Fixed-term Parliaments Bill

William Cash Excerpts

Tuesday 18th January 2011 Commons Chamber

[Mr William Cash (Stone) (Con)]

The simple reason why I am speaking to my amendment is that, as I indicated on Second Reading, I take the gravest exception to the Bill, for a variety of reasons.

[Mr Speaker]

Order. I am loth to interrupt the hon. Gentleman, to whom I look forward to listening, but just for clarification, as I think he knows, we are not debating an amendment; we are debating a group of two new clauses. It is to the new clauses that he is speaking.

[Mr Cash]

Yes, indeed. I am seeking to amend the Bill through a new clause, and I am grateful to you for making that subtle distinction, Mr Speaker.

The point is that the title of the Bill is a give-away. It refers to “Parliaments”; it does not refer to “Parliament”. Therefore, there is an underlying assumption that the process in question—which is inevitably tied up with the concept of the coalition politics, which are increasingly regarded as a perpetual burden that we will be expected to comply with—is inherent in the arrangements for the proposals in the Bill. The use of the word “Parliaments”, in the plural, simply emphasises that.

As one who believes firmly in the idea that our constitutional arrangements have stood us in good stead for a long time, but without being obtuse about the need for reform, I would say that there are changes in our constitutional arrangements that, periodically, can be justified. However, my proposal is, effectively, a “stop and restart” provision. That is, if there is any merit in continuing the arrangements, if they were to survive for as long as the period allocated by the leaders of the parties and the coalition agreement, then there is always the possibility—to put it no higher than that—of referring to some of those outside this place who, as far as I am concerned, are the most important people of all, namely our electors, and not leaders of parties or parties themselves. The real question is: what do the public think about all this? Of course, they have not been asked; indeed, there is not the slightest intention that they should be asked.

What I am suggesting is that the very concept of a fixed-term Parliaments Bill is offensive to the hallowed principle—that simple constitutional proposition—that no Parliament can bind its successors. I have therefore decided—I am glad to be joined by a number of other hon. Members in this notion—that we should have what we describe in the title of new clause 5, namely the “Expiry and revival of section 2”. I happen to hope that such a revival does not take place, and I shall explain why. “Expiry”, certainly; however, as I was very sensibly advised, because of the scope of the Bill and its background, rather than proposing what I would otherwise have put forward, namely a sunset clause—or, as I think it would be better described, a “cast into the darkness of hell” clause—I have proposed that clause 2 be required to expire when the Parliament summoned to meet in May 2010, on that fixed and prescriptive date, dissolves. You might have an interest in this, Mr Speaker, because, if anything were to happen, there might even be the need for the re-election of a Speaker. In such rare circumstances, you might take a particular interest in this provision. I am suggesting that clause 2 should expire in those circumstances.

It is important to bear in mind the provisions in clause 2. We have moved on from the Committee stage to Report, and I remind the House that I tabled amendments to clause 2 in Committee because I took the gravest exception to certain elements in it. I am therefore anxious that it should expire, because I do not believe that it is a constitutionally satisfactory provision. Clause 2(1) states:

“An early parliamentary general election is to take place if the Speaker of the House of Commons issues a certificate—

(a) certifying that the House has passed a motion that there should be an early parliamentary general election,

(b) certifying whether or not the motion was passed on a division”—

I do not think that there would be much difficulty in demonstrating that. The clause continues:

(c) if it is certified that the motion was passed on a division, certifying that the number of members who voted in favour of the motion was a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).”

I have no intention of going back to the discussions that we had on the clause. I tabled amendments to it and argued my case fairly, I thought, but the Whips got in the way—I do not know the reason—and the result was that I lost my Division. If I may say so without presumption, I do not believe that I lost the argument, but hon. Members on both sides of the House, particularly Back Benchers, are prone to believe our own arguments.

[Thomas Docherty]

On a point of clarification, I think it is fair to say that Opposition Members do not believe that the Deputy Prime Minister has won a single argument in the House during our deliberations on the Bill.

[Mr Cash]

That does not surprise me very much.

One thing that I objected to in clause 2 was the reference to “the number of seats”. We are elected as Members of Parliament, and I am not sure that “seats” are recognised in our constitutional arrangements. Seats do not speak, and vacant seats speak even less. I find the whole proposal utterly incomprehensible. As we well know, the present arrangement—not only in this legislature but in that of the United States and, I would say, all respectable legislatures—is that decisions are taken by a majority of one. So what is this new-fangled idea about a two-thirds majority? It is being introduced for one purpose only: to keep the provisions in the Bill going in perpetuity. That is why I take such exception to the use of the plural in the title “Fixed-term Parliaments Bill”.

This provision also involves an invasion of the principle that one Parliament cannot bind its successor. That is what I really object to, as that principle is central to our democratic process. The people who come in to any given Parliament are not the same as the previous people, and they are certainly not seats or vacant seats. I hope that other Members will agree that this is a very important constitutional question, on which I place a great deal of emphasis, in relation to the new clause that we are discussing.

[Mr Jenkin]

I want to ask my hon. Friend a genuine question. Supposing there were a new Parliament and section 2 of the Act were not renewed, would we not be left with a Fixed-term Parliaments Act that made no provision for an early general election? Is that what my hon. Friend wants?

[Mr Cash]

I do not deny for a minute that that is one of the consequences, but if we were to carry this new clause, it would effectively be the end of the Bill. As I look around the House and see the huge number of people attending this debate, I do not believe that there is the slightest chance of my winning the Division—

[Chris Bryant (Rhondda) (Lab)]

Yes, he might!

[Mr Cash]

Oh, I see. I am extremely grateful to hear what the hon. Member for Rhondda (Chris Bryant), that fierce defender of British liberty—when it suits him—has to say. In the light of what my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) has said, it would not cause me any concern if my new clause were passed simply because it would require a rethink, when there would be a completely new situation. Does my hon. Friend want to intervene again on that? No.

[Austin Mitchell]

The hon. Gentleman should not lack confidence about his ability to rally this House behind an important measure. Let me ask, since no Parliament can bind its successor, are not both the Bill and his new clause otiose because a new Parliament will simply wipe the plate, and if it wants to dissolve early, it will do so?

[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.

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[Tristram Hunt (Stoke-on-Trent Central) (Lab)]

It is called proper scrutiny.

[Mr Cash]

The hon. Gentleman corrects me by saying that it is proper scrutiny.

The Committee stated:

“Whilst acknowledging the case made by the Deputy Prime Minister for a five year term”—

it is so nice when the authors of such reports use expressions like “whilst acknowledging the case” and “with respect to”—[Interruption.] My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) knows what is in my mind. The Committee continued:

“nonetheless the majority of the Committee consider that a four year term should be adopted for any fixed-term Parliamentary arrangement at Westminster. In the view of the majority, the shift from a five year maximum to a five year norm would be inconsistent with the Government’s stated aim of making the legislature more accountable, inconsistent with existing constitutional practice and inconsistent with the practice of the devolved institutions and the clear majority of international legislatures.”

That is quite a condemnation.

[Mr MacNeil]

Just for clarification, is the hon. Gentleman referring to the recommended length of a parliamentary term as proposed by an upper Chamber where the length of a parliamentary term is life?

[Mr Cash]

I can only repeat what that Committee has said: it states that the appropriate length of a fixed parliamentary term should be no more than four years. The position is, therefore, that that powerful Committee has given that advice to the House of Lords, which has yet to be given the opportunity to vote on these proposals. I think we are moving into territory where there will be proper scrutiny, as it has been described—although the word “filibuster” nearly slipped out—as has proved to be the case in respect of provisions in the alternative vote Bill currently before the House of Lords. There may yet be the possibility of similar activity with regard to how long the fixed parliamentary term should be.

For all those reasons, I believe that the provisions I have felt concerned to raise through tabling new clause 5 are merited. They are consistent with proper constitutional practice and good sense. The attempt to, let us say, fix the next fixed-term Parliament ought to be prevented at all costs.

[Chris Bryant]

I warmly congratulate the hon. Member for North East Somerset (Jacob Rees-Mogg) on his amendment and the hon. Member for Stone (Mr Cash) on his amendment, which I shall address in a few moments. I should, of course, have called them “new clauses”; Mr Speaker corrected the hon. Member for Stone on that earlier. However, I think that the hon. Member for North East Somerset rather misled the House. He did not do so in any dishonourable way, but he suggested that he was not here in 1911. I do not believe that any Member of this House believes that he was not here then or, for that matter, in 1832 and 1641. If it was not exactly him, on each of those occasions it was certainly his predecessor who made almost identical speeches. So I congratulate him on his consistency, which has lasted not only for the length of a Lib Dem manifesto, but through the centuries, and I am sure he will be here for many generations to come.

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I can see that the hon. Member for Stone is itching to intervene, so I shall let him do so.

[Mr Cash]

I have been increasingly impressed over the months by the manner in which the hon. Gentleman has tackled these constitutional questions. He is putting the House in a far better position by the manner in which he explains many of his points. Having got over that bit of flattery, I point out that it might have been a good idea if, at this point in his speech—perhaps he is coming on to it—he had referred to the comments of the Clerk of the Parliaments. The Bill will go to the House of Lords, as I have pointed out, and we do not quite know what their lordships will make of it. Not only did the Constitution Committee come to a certain conclusion on the issue that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has raised, but so did the Clerk of the Parliaments. He said:

“It is...clear that the [Fixed-term Parliaments] Bill does contain provision to extend the maximum duration of a Parliament beyond five years, and that it cannot, therefore, be passed under the Parliament Acts procedure unless, before it leaves the Commons, the [relevant] provisions...are amended.”

Professors Bradley and Oliver agreed. That is an important point. Forgive me, Mr Deputy Speaker, for making rather a long intervention, but I wanted to get it on the record that this is not just a minor matter but something on which the House of Lords appears largely to have made up its mind.

[Chris Bryant]

I am always a bit reluctant to presume what the House of Lords’ final view might be, not least because three new Members of the House of Lords are being introduced every day at the moment—it is something of a moving feast down the far end of the corridor. The hon. Gentleman is absolutely right about the Clerk of the Parliaments, and incidentally I want to pass on congratulations to Mr Beamish, who has just been appointed the new Clerk of the Parliaments. It is also true that the Clerk of this House has made it clear that there are significant concerns about clause 2, which I shall come on to when I discuss the new clause tabled by the hon. Member for Stone. I am also always very grateful for any oleaginous support I can get.

The point I hope to make about new clause 3, tabled by the hon. Member for North East Somerset, is that I think that there is already adequate provision in the Parliament Act to ensure that Parliament cannot be extended. His new clause would apply to the whole of clause 1, so we would not be able to amend any of the elements of it, even if they had been adumbrated in a manifesto commitment and a single party won the next general election with a majority and legislated in that way. We would not be able to use the Parliament Act even to shorten the length of a Parliament.

If we win the next general election, notwithstanding the fact that we will have won, in a sense, the right for a five-year fixed-term Parliament—I hope we will— want to reduce the number of years from five years to four. As the hon. Member for North East Somerset has shown, historical consistency across the years is a good political attribute rather than a failing.

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[Chris Bryant]

Indeed, Mr Deputy Speaker, although I am not sure that we really have got to the edge of your knowledge; I think your knowledge is boundless, and consequently I agree with you. [Interruption.] The Parliamentary Secretary, Office of the Leader of the House of Commons, is talking about the pillars of Hercules, which is a rather fine pub I have sometimes frequented in—well, north London somewhere.

The new clause tabled by the hon. Member for Stone seems quite sensible, because we believe that section 2 has a series of elements that, as the Clerk of the House has pointed out, are problematic. We think that because the provision has been put into statute rather than included in the Standing Orders of the House, there is a real danger that elements could be questioned in the courts, and one would then have a dramatic constitutional crisis. Consequently, we understand that, as the hon. Gentleman said, those elements are there entirely to bind together the coalition. We understand why the coalition would want to maintain that element, but we certainly do not believe that a future Government should be bound by it.

The hon. Gentleman is right to say that no Parliament is bound by its predecessor and no Parliament can bind its successor. However, there is one sense in which it can delay its successor, because it makes it have to re-legislate if it wants to take away a part of statute law. It seems to me that since it is clear that this piece of constitutional—

[Mr Cash]

Flummery.

[Chris Bryant]

I was thinking of jiggery-pokery. Section 2 is being proceeded with not on the basis of consensus across the House, but on the basis solely of an agreement between the two coalition partners, so it would seem to us to make sense to make an allowance in the Bill that the section would die at the next general election. I note that the hon. Gentleman has crafted his new clause carefully so that it does not say 2015; it simply says that section 2 expires when the Parliament that was elected in 2010 comes to its end. At that point, whatever new Government had been elected could choose whether to continue with the provisions or to let them lapse. If it were a Labour Government, I am pretty confident that we would want to ensure that the provisions lapsed. However, what other parties may want to do is for others to determine.

The key point is that we would not want to have to introduce primary legislation to repeal this element of the Bill. For those reasons I am keen to support the hon. Member for Stone. I do not think his new clause quite throws the whole of the ship into the whirlpool, but I think that the throwing of a few sailors into the mouths of the demon in North East Somerset would be inappropriate, and consequently we shall support new clause 5 but not new clause 3. I very much hope that we shall be able to divide the House on this matter.

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For that reason, as was said in Committee by the hon. Member for Stoke-on-Trent Central (Tristram Hunt), who has just left his place, this is an extremely important matter to which the House should return at a future date. I am not sure that I want the Bill to become one of those constitutional Acts, although I fully accept that the House of Lords has a role to play in preventing a tyranny of the majority—incidentally, a role that it cannot play if it becomes an elected House.

[Mr Cash]

We are, in fact, moving into very difficult and choppy waters. With respect to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), I do not believe in the so-called constitutional statutes at all. They are an invention in the first instance by Lord Justice Laws. They have a certain spurious credibility, but it does not stack up. My concern is that we will need to use a range of “notwithstanding” arrangements in relation not only to the European Union but to the so-called constitutional enactments or Bills when we want to legislate in the House. We will also need to require the judiciary to give effect to the latest Westminster enactment in that field of endeavour and to state expressly what is intended to bypass this attempt to establish a completely new regime of codified legislation. That will simply become very difficult.

[Mr Jenkin]

That was the purpose of my referring to Lord Phillips’s recent obiter dicta, in which he implied that later Acts of Parliament can effectively repeal the parts of the 1689 Act that protect Parliament’s privileges. I do not think that that is satisfactory, and Parliament needs to think clearly about how we remain in democratic control of this country’s constitutional settlement.

Using legislative techniques, such as those suggested by my hon. Friend, is the direction in which we ought to move. Some people will say that means moving towards a written constitution, but that is to misunderstand our constitution. It is partly written and partly not written. The point is to determine who is in charge. Parliament should be in charge, with the necessary checks and balances between the two Houses. So I very much welcome the debate that my hon. Friend the Member for North East Somerset has initiated on this topic. This debate will run and run, even though we might not be able to agree or divide on his new clause.

I put my name to new clause 5, tabled by my hon. Friend the Member for Stone, partly because it provides an opportunity to remind ourselves of how bad the Bill is. I am afraid that I am appalled that it was introduced in this way. I cannot recall any Government ever introducing a Bill to manipulate the constitution for their own purposes in such a nakedly self-interested way. Clause 2 is simply a fig leaf to ameliorate the problems that arise from fixed-term Parliaments.

Let us remind ourselves of the provisions of clause 2. The two-thirds provision is obviously open to manipulation—assuming that the mechanism does not drag us into disputes with the courts—because if the Government of the day tabled a motion of no confidence in themselves, it would hardly be likely that the Opposition would oppose it, so a general election would still be available at the initiative of the Executive. In a coalition arrangement, the smaller partner might decide not to take part in such a process, meaning that the motion would be opposed and, by arrangement with the Opposition, perhaps passed by only a simple majority. Under the Bill, we are therefore creating arrangements by which a junior coalition partner may switch horses halfway through a Parliament.

I believe that the Liberal Democrats wanted a fixed-term Parliament so that they could swap coalition partners halfway through the Parliament. Lo and behold, we now read in the papers that the Leader of the Opposition and the Deputy Prime Minister seem to be striking up a new friendship—perhaps that heralds the switch. Of course, I am talking hypothetically—the subject is theoretical—but, constitutionally, the possibility exists. It is extraordinary that we are contemplating putting in place arrangements that could bring about a change of Government, Prime Minister and Administration without a general election, but that is what the Bill provides for. The hon. Member for Rhondda (Chris Bryant) seems to be looking at me quizzically.

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[Mr Jenkin]

Inevitably, these debates always depend on speculation about what might happen, which is the one rather unsatisfactory thing about debating the future of the constitution. I have always been regarded as a bit of a pessimist about the European Union, but I did point out to a colleague that, so far, I have been proved right, and if these arrangements remain the same indefinitely, sooner or later I will be proved right again.

The point is that the Bill—except for this new measure in clause 2—is intended to remove the safety valve that allows for an early general election. However, that clause is the worst part of the Bill. As we were told by the Clerk of the House in his memorandum, before the Bill was considered in Committee:

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

The procedures of the House, votes of confidence, Speaker’s certificates and two-thirds majorities all become potentially justiciable, notwithstanding the Bill of Rights. For that reason, I fully support the new clause tabled by my hon. Friend the Member for Stone.

A vain attempt to remove the courts from considering those matters is made in clause 2(3), which states:

“A certificate under this section is conclusive for all purposes.”

Unfortunately, clause 2(3) is itself justiciable by the courts, because we are putting this into statute. That part of the Bill, which attempts to ameliorate the problems that arise from having fixed-term Parliaments, creates the biggest constitutional headaches for Parliament itself by inviting the courts to intervene in those matters.

[Mr Cash]

On that very question, does my hon. Friend recall that the 1911 Act goes further? It does not end by saying that the certificate

“shall be conclusive for all purposes”,

but adds

“and shall not be questioned in any court of law.”

I would simply add to that the word “whatsoever” because of the very problem that he has mentioned. The Supreme Court, or indeed any other court, may seek to take control over this.

[Mr Jenkin]

I put it to my hon. Friend that that wording in 1911 may well have been sufficient because it would not have entered the heads of the judges in those days to breach the Bill of Rights, but we know that members of the now Supreme Court—note the word “Supreme”—sincerely believe that Parliament is within their purview. We have had the debate about whether the sovereignty of Parliament is a common-law principle—that is, part of judge-made law, rather than an historical fact that exists in its own right as a result of the disputes between the Crown and Parliament in the 17th century.

I believe that it would be helpful if I spoke briefly on this matter, and I take this opportunity to commend my hon. Friend on his new clause. Future Parliaments should have the opportunity to throw out the proposals in clause 2. That would not wreck the Bill, but it would invite questions about what it means and how practical it is. It would certainly impel a future Parliament to consider at the earliest opportunity whether the Fixed-term Parliaments Act should remain on the statute book—I very much hope that it will not—or to put in place much better arrangements to provide for early general elections under a fixed-term Parliament system. The Bill as drafted is nonsense and a potential disaster. If we do not fix it in this place, I hope that those in another place will do so.

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My hon. Friend confirmed, in effect, that new clause 5 was a wrecking amendment. He said that he could not table the proposal exactly as he had wanted, because it would have been ruled out of order. I suppose that it is a wrecking amendment in a cunning disguise.

[Mr Cash]

I strongly resent the idea that new clause 5 is a wrecking amendment; it stands on its own merits, and I repudiate this Baldrick attempt to turn it into a cunning plot.

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[Jacob Rees-Mogg]

I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

[Mr Cash]

rose—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. If you wish to press your new clause, Mr Cash, you will have an opportunity to do so later, after we debate the next group, which starts with new clause 4.

New Clause 4

Prorogation of Parliament

‘(1) Parliament can only be prorogued in accordance with this section.

(2) If the House of Commons resolves that Parliament should be prorogued, Parliament shall be prorogued at that time, or by declaration of the Speaker.

(3) The Speaker of the House of Commons shall not make such a declaration unless the House of Commons has passed a resolution directing him to do so on or before a specified date and time.

(4) Where Parliament is prorogued under subsection (2) above, the Speaker may by declaration prorogue it to an earlier or later day.

(5) The Prorogation Act 1867 is repealed.’.—(Chris Bryant.)

Brought up, and read the First time.