Deregulation Bill

Debate between William Cash and Thomas Docherty

Wednesday 14th May 2014 Commons Chamber

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

I will not speak for long as I am aware that one of my former colleagues, a fellow survivor of the Joint Committee on Parliamentary Privilege, the hon. Member for Stone (Mr Cash), also wishes to contribute.

On behalf of Members across the House, I thank the Clerks for their assistance on the Committee, particularly Liam Laurence Smyth, the Clerk of the Journals, who so skilfully kept most members of the Committee in order. I felt quite intimidated as a member of that Committee because we had such august parliamentarians as the hon. Members for Stone and for Harwich and North Essex (Mr Jenkin), the right hon. and learned Member for North East Fife (Sir Menzies Campbell), my hon. Friend the Member for Stoke-on-Trent Central (Tristram Hunt)—now promoted to shadow Education Secretary—and of course yourself, Madam Deputy Speaker, the most able member of the Joint Committee, who ensured that we kept things right.

Amendment 4 stands in my name and those of the hon. Member for Stone and others, and—as you know, Madam Deputy Speaker, having served on the Committee—it is the second attempt by a Joint Committee to get this legislation removed from the statute book.

Briefly, back in the mid-1990s, Mr Neil Hamilton, then a Member of Parliament, was seeking to sue The Guardian for defamation over what turned out to be true allegations about his cash links with Mohamed Al-Fayed. As I am sure the whole House knows, under parliamentary privilege Members are not allowed to use parliamentary proceedings in a civil or criminal case. Mr Hamilton persuaded the then Conservative Government to introduce a clause that allowed a Member of Parliament to waive their privilege, so that they could use parliamentary proceedings as evidence in a defamation case when suing a newspaper. However, it was done in such a way that a newspaper could not also seek to have parliamentary privilege waived. That created an unfair playing field and, frankly, was done to help Mr Hamilton, who it then turned out was a liar and a crook—that is probably why he is a member of UKIP these days. The Joint Committee in 1999 and again last year recommended that the measure be taken out of statute because it was unfair on newspapers and an abuse of privilege.

Obviously, the amendment is supported by the Opposition, and my hon. Friend the hon. Member for Wallasey (Ms Eagle) made clear our support last Thursday during the debate on parliamentary privilege. I welcome the fact that the names of the Solicitor-General and the Deputy Leader of the House now appear next to the amendment. I assume that they speak for both parts of the coalition and that the Government will be addressing the issue. To conclude, this is about silly legislation that should never have been introduced, and I welcome the fact that the Government are taking the Joint Committee’s recommendation on board.

[Mr William Cash (Stone) (Con)]

I am most grateful to you, Madam Deputy Speaker, for your service on the Joint Committee on Parliamentary Privilege along with me and the hon. Member for Dunfermline and West Fife (Thomas Docherty), not to mention the litany of others—the hon. Gentleman has already mentioned them, so I do not need to. Amendment 4 is necessary, and I will refer to articles 163 to 170 of the Committee’s report, which include our recommendations for the repeal of section 13 of the Defamation Act 1996, just to get that on the record and make it easier for people to follow what is being said—we do not have much time to go into all the ins and outs.

The hon. Gentleman has explained the background to this issue, but I will add one or two further points. As my hon. and learned Friend the Solicitor-General stated, the proposal was endorsed by the 1999 Joint Committee, and most recently by the 2013 Joint Committee, in your presence, Madam Deputy Speaker. The 1999 Joint Committee stated that,

“the enactment of section 13, seeking to remedy a perceived injustice, had created indefensible anomalies of its own which should not be allowed to continue”.

That is why it recommended that section 13 be repealed. The fundamental flaw identified by the 1999 Joint Committee was that,

“the section undermined the basis of privilege: freedom of speech was the privilege of the House as a whole and not of the individual Member in his or her own right, although an individual Member could assert and rely on it.”

The 1999 Committee noted that,

“the anomaly that section 13 was available only in defamation proceedings and not in any other form of civil action”

or criminal action. The Committee pointed out that,

“since the exercise of section 13 is a matter of individual choice, where two people are involved in the same action, one may choose to waive privilege and another may not.”

The 1999 Committee recommend that,

“the mischief sought to be remedied by section 13 of the Defamation Act 1996 should be cured by a different means: the replacement of section 13 with a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or to any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability.”

That approach was supported by Lord Lester of Herne Hill, and by Dr Adam Tucker and Geoffrey Lock, a former head of the research division in the House of Commons Library.

The Newspaper Society opposed any discretionary power to waive privilege, the use of which would be unpredictable and retrospective. It argued that,

“the power of waiver could create a chilling effect, by the mere threat or possibility of its use, which would be detrimental to openness of debate and press reporting of proceedings in Parliament.”

In its response to the Government consultation, the legislative council of Western Australia argued that,

“it was preferable for privilege not to be waived for any reason, in order to avoid the potential for the waiver being used for purely political purposes.”

Our Clerk of the House of Commons, the distinguished Sir Robert Rogers, who is sadly retiring, told us that his preference would be for the repeal of section 13, “without replacement”. The Media Lawyers Association took the same view.

In evidence, the Government told the 2013 Committee:

“There are clearly problems with Section 13 of the Defamation Act. It is at odds with the principle that freedom of speech is a privilege of the House, not just individual members and it can create an imbalance where one party to proceedings can choose to use the parliamentary record but the other cannot.”

At that time, the Government told us that,

“the Government is not aware of any instances in which anyone has used the power of waiver and as such it would not appear to be a pressing priority to repeal Section 13.”

On reflection, the Government have decided that repealing section 13 is a good idea. We are grateful to them for following our recommendation.

I ought to say that, initially, there was an attempt to include the proposal in the Criminal Justice and Courts Bill but, as a result of consultation, members of the Committee agreed that it was better to include it in the Deregulation Bill, which is why we are debating it. The Committee recommends the repeal of section 13 of the Defamation Act 1996. That is all I have to say for the time being.

Dairy Industry

Debate between William Cash and Thomas Docherty

Thursday 13th September 2012 Westminster Hall

[Thomas Docherty]

The hon. Gentleman is correct. I will touch on the role that the groceries code may play in that process in the future. I did not say that I necessarily agreed with the assertions about Devon, but they have been forcefully made on more than one occasion.

I say well done to those retailers who have belatedly got on board, but why did it take them so long? The actions of the House and the dairy industry forced the retailers to take those steps. Members on both sides of the House will look to the Minister to hold all elements of the supply chain to account. We all want the groceries code and the voluntary code to work, but it is vital that he takes the lead on pushing through these issues.

On the specific case of the adjudicator, the previous Government gained cross-party support for a supermarket ombudsman to ensure a fair deal for farmers and food producers from the major retailers. Following a Competition Commission inquiry in 2008, Labour introduced a new groceries supply code of practice in August 2009, which came into effect in February 2010. The Competition Commission also recommended the creation of an ombudsman to enforce and monitor the code of practice.

This Government presented their Groceries Code Adjudicator Bill in the House of Lords before the summer recess. However, the Bill grants only limited power to the adjudicator to tackle the issues in the dairy industry. It will be limited to tackling the direct supply between the processor and the supermarket, or the farmer if they have a direct contract with the supermarket, and will not be able to deal with a three-party contract. I hope that the Minister will reflect on that and listen to the Select Committee’s cross-party advice.

[Mr William Cash (Stone) (Con)]

It would be highly desirable, would it not, if the milk that is used in the Houses of Parliament came from UK sources at a fair and sustainable price? Does the hon. Gentleman agree that if we gave a lead in the Houses of Parliament, it would send out a big message?

[Thomas Docherty]

The House of Commons Commission has urged the catering and retail services to ensure that we operate within the European rules—I am conscious that I am now setting off a whole new avenue for the hon. Gentleman—but perhaps the Minister will set out what steps he will take to ensure that all Departments buy their milk from British farmers.

The issue that we have faced time and again during this dispute is that retailers have argued that the cuts on farm-gate prices were being implemented by the milk processors and not by the retailers. The reality is that, as the hon. Member for North Cornwall (Dan Rogerson) mentioned earlier, the downward pressure has come from the supermarket shelves, and that pressure is passed on to the milk processors, who then pass it on to the producers.

We have urged Ministers in the Lords to keep open the option of extending the powers of the groceries code adjudicator. I hope that when the Bill comes to the House of Commons, the Minister will consider talking to his colleagues in the Department for Business, Innovation and Skills about the potential of extending the GCA’s powers if necessary.

In closing, I have a few questions to put to the Minister.

Fixed-term Parliaments Bill

Debate between William Cash and Thomas Docherty

Tuesday 18th January 2011 Commons Chamber

[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.

European Union Bill

Debate between William Cash and Thomas Docherty

Tuesday 7th December 2010 Commons Chamber

[Mr William Cash (Stone) (Con)]

People have fought and died over many centuries over the need to affirm parliamentary sovereignty—in the civil war and at the time of the defeat of the Stuarts in the 17th century, when the Stuarts’ absolute sovereignty was literally killed off. Since the advent of modern democracy in 1867, people have fought and died in two world wars to preserve the right to govern themselves through their own Parliament by freedom of choice in the ballot box.

The European Union claims sovereignty over our democratic Parliament, and this mouse of a Bill does little to preserve it. Given the present European crisis with the euro, as my right hon. Friend the Member for Wokingham (Mr Redwood) so accurately pointed out, and given the failure of economic governance in which we are absorbed and the coalition Government’s continuing acquiescence in European integration and their refusal to repatriate powers, the Bill does little or nothing to improve the situation.

The European Scrutiny Committee reported last night, to an eerie silence from the BBC, and as we clearly indicated, the Committee’s report is essential reading for those who really want to know what is going on. There are grave objections to the principle, the methodology, the distorting and misleading explanatory notes that accompany the Bill, and clause 18 itself. Clause 18 is a judicial Trojan horse leaping out of Pandora’s box. It is not, as the Foreign Secretary claimed, an enlightened act of national self-interest.

Parliamentary sovereignty is not built on a common law principle, as the Government claim. It is built on the sturdy foundations of the freedom of choice of the voters of this country, and not the whimsy or the Euro-integrationism of some Supreme Court judges. They increasingly claim that they are upholding the rule of law, but I have to ask which rule and whose law.

Shortly before he died last year, Lord Bingham, the late Lord Chief Justice, in his book “The Rule of Law” took on three fellow members of the Supreme Court who had previously adjudicated on the Jackson case with him in the House of Lords a few years ago as to their views on parliamentary sovereignty, as set out in our report. This is an extremely unusual situation and was greatly merited. I do not impugn their motives, but I criticise their judgment.

Only a couple of months ago, Professor Drewry of London university stated in a lecture that

“one can perhaps detect in the recent pattern of House of Lords and Supreme Court decisions, an appetite on the part of the Justices—encouraged by some continuing developments in EU and human rights law—to begin to get to grips with constitutional issues that previous generations of judges would have regarded as completely off limits.”

In this context, judicial activism is on the march. It has been there for a long time and it is increasing its tempo. The judges are not toying with all this, as was suggested by one witness. I suggest that Members read not only our report, but the articles, many of them written by these judges, and the speeches, for example, of Lord Steyn and Lord Hope, and many others that are quoted in our report.

The Bill, as Professor Adam Tomkins said in evidence, and as I mentioned in an intervention on the Foreign Secretary, is an invitation to litigation and, I would say, deliberately so. It has been left in a dead letter box in the precincts of the Supreme Court across Parliament square.

Clause 18 is not a proper sovereignty clause, when it could have been what was promised in our manifesto. Last night the Minister for Europe said that the Bill

“delivers on what was in the coalition programme simply as an agreement to consider the case for a sovereignty Bill”,

and that the Bill—that is, a sovereignty Bill—

“is being introduced by the means of clause 18”.

I am bound to say that it is not that at all. It is even dangerous.

[Thomas Docherty]

As the hon. Gentleman says, this is a mouse of a Bill. Does he agree that what we need is genuine reform of the European Union so that it delivers what it should be concentrating on, and that sovereignty should remain in Parliament and not be passed across to shyster lawyers arguing the case in the Supreme Court?

[Mr Cash]

I strongly agree with that sentiment. Indeed, I go further and say that I have always argued for an association of nation states based primarily on trading and political co-operation. Above all else, we must ensure that we make those decisions in the House on behalf of the electorate. Where we find it impossible to make those decisions, it is increasingly argued that it should be done by referendum, when we abdicate the power in the House to the people as a whole.

Clause 18 defies the sovereignty clauses on which the shadow Cabinet, the Whips and Back Benchers voted on several occasions before the general election, using my “notwithstanding” formula. Our report, based on clear evidence from constitutional experts, upholds both the principle and the wording of the “notwithstanding” formula, which I proposed in amendments to the Legislative and Regulatory Reform Bill when we were in opposition. The Whips even asked me to put in their own tellers. As I said to the Minister for Europe last night, he too voted for those provisions. Why not now, therefore, and in the Bill?

We have no hope of resolving the effect and implications of the European crisis on our country, or of reducing by deregulation the impact of European laws on our businesses, including our small businesses, and our deficit, if we do not remove the overall burden of the 50% of economic regulation now on our own statute book, according the House of Commons Library on 13 October.

Fixed-term Parliaments Bill

Debate between William Cash and Thomas Docherty

Wednesday 24th November 2010 Commons Chamber

[Thomas Docherty]

I thank my hon. Friend. I will not repeat my previous lecture on US constitutional history, but it is worth reflecting on what happened before the 1997 general election, when Labour, the Liberal Democrats and civic society in Scotland got together for a five-year constitutional convention and teased out over that period exactly the mechanisms that would lead to a no-confidence vote. As I mentioned earlier, using the example of Scotland, if the Budget falls in the Scottish Parliament, that does not automatically trigger an early general election. What happens is that the Presiding Officer of the Scottish Parliament has to set out that there will be a vote of no confidence later.

[Mr Cash]

The hon. Gentleman spoke about his enthusiasm for the Speaker. Does he agree that we must make certain that under no circumstances should the Speaker’s certificate be decided through the courts? The provision in the clause raises a serious question. The Clerk of the House was entirely right in his assessment. Furthermore, when the Committee votes on the amendments, it must decide that it will not under any circumstances allow the Speaker’s certificate to be decided by the courts, and that the wording of the 1911 Act—

Parliamentary Voting System and Constituencies Bill

Debate between William Cash and Thomas Docherty

Tuesday 2nd November 2010 Commons Chamber

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

rose—

[Mr Cash]

Wait a minute. That is so for the very simple reason that many people have a visceral hatred of both parties and therefore think, wrongly, that they are voting for another party that will do them some good—we have a different view about that.

I regard this as a lambs-to-the-slaughter Bill—this is why I insist on the threshold—because of what would happen under these arrangements to a number of Conservative MPs if they were to get less than 50% of the vote, as they did in the last election. I have calculated that 60 Conservative MPs had Liberal Democrats in second place. My sense of friendship for my colleagues suggests to me that putting as many as 60 seats on the line is a very high price to pay for the purposes of something so central to the coalition. The figures I have show that those who would be affected range from my hon. Friend the Member for Watford (Richard Harrington), who got 34.9% of the vote, to my hon. Friend the Member for Romsey and Southampton North (Caroline Nokes), who got 49.7%. All those Members would be largely at risk, although some more so than others, and something will depend on the boundary changes. I cannot understand how my party can make arrangements that take those lambs to the slaughter. This is extraordinary and I would be interested to hear the Minister’s reply.

[Mr Cash]

I have voted consistently against this Bill and I will continue to do so, for the reasons that I have given. It behoves some of us to act both with consistency and in principle against things that were not in our manifesto—in fact, it is the opposite because our manifesto declared that we were not in favour of the alternative vote. Furthermore, there was complete silence on the question of threshold until we received the Bill.

[Thomas Docherty]

The hon. Gentleman is probably one of the longest-serving parliamentarians. Will he clarify whether he believes that the House of Lords should be bound to follow the manifesto commitment convention or, given that this provision was not in his party’s manifesto, that the House of Lords is perfectly entitled to disregard that convention?

[Mr Cash]

That is a very good question.

My final point is that leaving this ultimately House of Commons issue—it is about voting here in the House of Commons—to the House of Lords is absolutely disgraceful. This issue should not be resolved in the House of Lords. I have heard a number of my hon. Friends, for whom I have the greatest respect on most matters, churning this out and I simply think it is unacceptable. This is a matter for the House of Commons; it is about our electors, our constituencies, our constitution and the freedom of choice at the ballot box. I utterly reject this Bill and I utterly reject the idea of AV. I strongly urge hon. Members to vote with me on the threshold provision that stands in my name.