Oral Answers to Questions

Jesse Norman Excerpts

Wednesday 21st March 2012 Commons Chamber

[The Prime Minister]

There is one law that has to cover everybody in this land, and if there is any accusation of wrongdoing, that is something that the police, who are completely independent of the Government, can investigate. That is what should happen. I say that on the hon. Gentleman’s behalf, but he could do something on everyone else’s behalf. He runs the Right to Work campaign, which is stopping young people getting work experience places. If he cares about opportunities for young people, he will give up that left-wing organisation.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

Q11. My county of Herefordshire has below-average household income, but public funding for schools and health care in Herefordshire has been among the lowest in the country for a long time. Does my right hon. Friend share my view that that is unfair, and will he personally support measures to change the funding formulas, to get a fair deal for my county and for other similarly affected rural areas?

[The Prime Minister]

My hon. Friend will know that we are looking at the funding formula for schools. We want to try to make it simpler, so that people can see what the criteria are and why their area receives the money that it does. At the same time, we are introducing the pupil premium, which will mean that parts of the country such as his, where there are quite high levels of deprivation in parts, will get specific funding for those children who are on free school meals. That should help the funding of those schools that need the money the most.

United Kingdom Statistics Authority

Jesse Norman Excerpts

Tuesday 13th December 2011 Commons Chamber

[Mr Jenkin]

I am most grateful to my hon. Friend for raising that point, which he raised in the pre-appointment hearing and to which Andrew Dilnot responded favourably. I think he sees the potential of improving public access to statistics and the public’s ability to understand why they appear as they do, what value they offer and, therefore, how they can influence the democratic process. This goes to the heart of so much of what we do in this place, and the way in which we try to engage our public. Technology, particularly the internet, enables us to do that in an unprecedented way. There is no reason why every citizen cannot have access to the same information that we have—the information that informs the decisions that we make in this Parliament. We should therefore involve the public much more in that. Indeed, we have an obligation to ensure that what the Government and the Opposition say is objective, truthful and properly informative, rather than otherwise; we all know what Disraeli said about damned lies and statistics. We need to ensure that the quality of the numbers and the data that the Government produce genuinely informs the debate, rather than just advancing the partisan interests of those producing them.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

Does my hon. Friend share the view that it is a proper function of the UK Statistics Authority to be fully separate, over and above the Office for National Statistics, or does he see some scope for reducing the number of quangos in this area?

[Mr Jenkin]

We are talking about a quango that survived the cull. Given that it was so recently established by an Act of Parliament, it would have been an absolute travesty if it had fallen to the cull. The reason is that for many years those who understand the rather arcane world of statistics have been campaigning for much more independent oversight of statistics. Indeed, independence is one of the key tests that the Government applied in the Public Bodies Bill and the review of arm’s length bodies. If a body’s independence is fundamental to the function it performs, that justifies its existence. Therefore, the United Kingdom Statistics Authority was never on the list.

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[Jesse Norman (Hereford and South Herefordshire) (Con)]

I, too, am extremely pleased to support the motion. I speak not only as a Member of the House but as a member of the Treasury Committee. The House will be aware that we are extremely reliant on the quality of our national statistics as we supervise, regulate and seek to hold to account, at least at arm’s length, entities and agencies that are themselves extremely reliant on our national statistics. This appointment reflects very creditably on the Government for their willingness to choose, and to allow pre-selection hearings on, the highest quality candidates who can genuinely hold them to account rather than simply choosing placemen. This appointment fits into that good tradition, and the appointment of Robert Chote was another example of that.

I pay tribute to Sir Michael Scholar and also to the Public Administration Committee’s role in vetting not one but two candidates.

[Paul Flynn (Newport West) (Lab)]

Would the hon. Gentleman extend those sentiments to the Mayor of London, who, when he was criticised for abusing statistics before a Select Committee of the House, reacted to the criticism of Michael Scholar by describing him as a “Labour stooge”?

[Jesse Norman]

I certainly do not share that view and I am not sure that the Mayor would share that view if he had further time to reflect on it.

Sir Andrew Dilnot is a person of impeccable personal reputation and great intellect. He has been garlanded with honours from our finest academic institutions and the Institute for Fiscal Studies. Anyone who has heard him present “More or Less” or heard his outstanding podcasts will know that he is an extraordinarily apt and adept presenter of information, and therefore perfectly fits an agency with the job not merely of presenting information and ensuring its integrity but of recruiting and engaging its users.

The truth is that we in Parliament and those in government cannot survive without good information and good numbers, and the Opposition, whoever they may be, cannot survive without the numbers that allow them to hold the Government to account. I hope that an early priority for the new chair will be to look at the private finance initiative, which hon. Members will know is one of my pet bugbears. I can think of no better example than that because there has been extraordinary abuse of those statistics, with things being pushed off-balance sheet, with standards that are not of the highest quality being adopted and—I am pleased that this is being addressed by the Government—with the creation of a situation in which it is possible to have an asset that is off-balance sheet not only to the country but to PFI contractors.

Sir Andrew Dilnot is also to be commended for his outstanding report on different ways of funding the provision of care for the elderly. It would be a very poor debate that did not recognise that and congratulate him on that report. His appointment fits into a pattern of improving the governance of our public agencies, and it is a principle that could properly be extended to other public agencies whose governance has been somewhat lacking of late. I think in particular of the Bank of England, whose court needs comprehensive restoration; the Treasury Board, which could do with refreshment; and the governance of HM Revenue and Customs, which needs higher quality senior officials and non-executives.

I conclude by congratulating the Government on this appointment, and Sir Andrew Dilnot on his acceptance, on his passion for statistics and on his independence of mind. I welcome the energy, the integrity and the intelligence which he will bring to the evaluation of policy, I hope, as well as to the assessment of statistics and their presentation to the public.

Open Public Services White Paper

Jesse Norman Excerpts

Monday 11th July 2011 Commons Chamber

[Mr Letwin]

The Minister for the Cabinet Office and Paymaster General, my right hon. Friend the Member for Horsham (Mr Maude), is taking a series of steps not just to enable, but to promote mutualisation and co-operatives across the whole range of public services. [Interruption.] I beg the hon. Gentleman to give us a little time. That action is already beginning to work, and I think that in four years’ time he will see a vast field of mutuals and co-operatives working constructively throughout public services.

We want to be strictly neutral. We want to favour providers of all kinds—mutuals, co-operatives, voluntary sector organisations, community groups, private sector bodies and, of course, the public sector itself—if they can provide the best possible services for users of those services. That is our aim.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

As chair of the all-party parliamentary group on employee ownership, I congratulate the Government on the White Paper. Might some thought be given—in addition to an asset lock—to the provision of a golden share in some of these enterprises? By giving some scope and protection in the short term, might that not allow more of them to be transferred into the mutual and employee-owned sectors?

[Mr Letwin]

My hon. Friend makes a good and interesting point, and there may well be cases in which that is the appropriate method. I know that he is a serious student of these matters. Perhaps when he has had time to read the White Paper, he would like to discuss where that idea might apply. We are certainly more than willing to entertain it.

House of Lords Reform

Jesse Norman Excerpts

Monday 27th June 2011 Commons Chamber

[Sadiq Khan]

The right hon. Gentleman may not have heard everything I have said—it has not been that great so far—but I think I highlighted in the first 30 seconds the Labour party’s policy, and my views, on this issue. He can take it from us that we will do business with those who keep promises and whom we can be sure have a real commitment to a properly elected second Chamber.

It is obvious that many of the conventions that have stood us in good stead over decades are becoming increasingly defunct and will not serve us at all should reform proceed as planned. For example, the convention whereby the Lords will not continue to oppose legislation based on manifesto commitments for which there is a mandate faces a new test under the coalition given that it is not clear what can be considered its manifesto. Is it each party’s manifesto or the coalition agreement, which the electorate did not vote on? We will need to ensure that the rules and regulations that allow a reformed upper Chamber to continue to revise and scrutinise are in place, while continuing to recognise the role of the Commons. The second Chamber must continue as a revising Chamber, not a rival Chamber.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

Given the right hon. Gentleman’s strong commitment to honouring manifesto commitments, will his party honour its own manifesto commitment to insist on a referendum on any Bill on an elected House of Lords?

[Sadiq Khan]

The hon. Gentleman makes a good intervention. It is important that the Joint Committee respects party policy and manifestos, and I hope that it will do so in its recommendations.

The draft Bill does not adequately address these issues. Clause 2 simply states that nothing in the Bill

“affects the primacy of the House of Commons”.

That is inadequate and ignores work done on rules and conventions by previous Committees, including the Joint Committee on Conventions chaired by Lord Cunningham of Felling. The new Joint Committee will need to recognise this fact and seek to open up the issue of powers and conventions; otherwise, the reform process runs the risk of being fatally flawed.

Another area of concern is the length of term of those elected to a newly reformed upper Chamber. Increasing the democratic accountability of the Lords has to be one of our key objectives, but I am unclear how this will be best served through single 15-year terms for those elected. What do we do in a situation where some less diligent individuals are elected and recognise, almost straight away, first, that the next 15 years are now sorted and, secondly, that they do not need to worry about what the electorate believe or want because they will never need to face them again at the ballot box? Is this what we want in our second Chamber?

We also face the tricky constitutional issue of the future of the bishops. I recognise that we have an established Church and that a move to a fully elected upper Chamber would not accommodate our current system. Some have argued that if we allow the bishops to stay in the reformed second Chamber, we should allow representatives of other major religions to have seats. However, there are major practical difficulties, not least the fact that some religions do not have such obvious hierarchical structures as others, so it is unclear who would be their representatives—let alone whether it is right for organised religion to play such a central part in our political system. It is right and proper that this House and the Joint Committee debate such issues if we are to get reform of the second Chamber right.

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[David Miliband (South Shields) (Lab)]

I apologise to the House for having to absent myself for a short period this evening.

It is nice to be able to speak in the House in full and enthusiastic support of the manifesto on which I was elected, and consistent with my previous votes in the House for 100% election and 80% election to the Lords, in 2003 and 2007. I look forward to getting the chance to vote on the matter again.

I wish first to dispose of three very bad arguments against proceeding towards an elected House. The first is that we need to sort out the functions of the House of Lords before doing so. The truth is that there is agreement on that point. The House of Lords is a revising Chamber not equal to the House of Commons, prevented by statute from pre-empting the supremacy of this House and established by law and by practice to persuade and restrain this House.

The second argument is that the public have got other things on their mind. The idea that the Government have a bad economic policy or health policy because they are distracted by House of Lords reform is frankly risible. We are elected to this place to debate the big issues of the time, and I do not believe that it is sufficient to say that this is not people’s main preoccupation.

The third bad argument is by far the most tempting. It is: because the Deputy Prime Minister is in favour of an elected House, is sponsoring the debate and will sponsor the Bill, it must be a bad idea. That view has many supporters in both main parties, as we will discover, and one can see the force of the point. When the right hon. Gentleman said before the election that he wanted to unite the nation, he could scarcely have imagined that people of all shades of opinion would come together so quickly to agree that he is not a very lovable rogue. However, although that is a tempting argument, I hope that my colleagues, especially Labour colleagues, will not fall for it. The right hon. Gentleman needs no help from either of the two so-called main parties to administer his fate, and there is a much bigger game here than the temptation to kick a man when he is down. The roadblock to reform is not, in this case, the right hon. Gentleman, but the Government’s puppetmaster, the Prime Minister. We should not be diverted by the temptation of kicking smaller fry.

The fundamental issue at stake is whether a stronger, more assertive, more legitimate House of Lords will be good for the governance of the country, not just in democratic theory, but in real life and practice. I believe that it would. I am a believer in strong government. I also believe that a strong Government get stronger and better when they are more accountable to a strong legislature. That is what we are debating today. That is a recipe not for gridlock but for better government.

Legislative strength is, in part, the way in which this House functions. Personally, I would have liked to see electoral reform of this House and the second Chamber on the same ballot paper in a single referendum, because we should debate the Parliament of the United Kingdom as a whole. The House of Commons and the House of Lords exist in relation to each other, not simply separately. However, following the alternative vote fiasco, that opportunity has been missed. None the less, it is striking that many of those who argue that reform will make no difference to the public also contend that it will mean the end of the House of Commons as the voice of the public. They cannot have it both ways.

Reform of the House of Lords is important to the strength and effectiveness of the legislature as a whole. That is why I argue for it.

[Jesse Norman]

I am grateful to the right hon. Gentleman for reciting such a compendium of errors. If he is giving us a lecture on logic, how does he explain the contradiction of a Prime Minister, who is allegedly, in the right hon. Gentleman’s view, a puppetmaster, yet also an enthusiastic advocate of the proposed legislation?

[David Miliband]

The hon. Gentleman tempts me and I will deal with that exact point shortly.

To those who say that an elected House of Lords will be stronger, I reply, “Good.” It will be good for the House of Commons and good for Governments of any stripe to face more effective and assertive scrutiny, and, where necessary, revision of their legislation from the House of Lords. That is not the same as advocating the overthrow of the primacy of the House of Commons, or as saying that the House of Lords will be a rival to the House of Commons. This country’s democratic problem is not neutered Government, emanating from the House of Commons, but under-scrutinised, under-accountable, over-centralised and over-confident Government.

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[Andrew Griffiths]

As my hon. Friend is, like me, a member of the Select Committee on Political and Constitutional Reform, he will know how passionate we both are about political and constitutional reform. We want to see a better Chamber and a better politics come out of this place, but all too often we are navel gazing by talking about the things which turn us on as political anoraks, but which have no impact whatever on the general public and voters at large.

[Jesse Norman]

Does my hon. Friend share my view that the process of scrutinising the Bill is likely to take days, if not weeks, of parliamentary time? Does he also share my view that it will be impossible to account to the electorate for how that time was spent when there is a fire in the economic engine-room?

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[Mr Ruffley]

I want to make some progress.

The final objection to such a system, of which we have heard much today, is that an elected peer would be elected for a 15-year term, and during that period would be accountable to no one. Even on its own terms, the democratic argument seems defective.

According to the White Paper published earlier this year,

“The Government does not intend to amend the Parliament Acts or to alter the balance of power between the two Houses of Parliament.”

I must say, with respect, that that utterly misses the point. A democratised upper House would be stronger, and would have its own view about the balance of power. Once the power has been given to them, what Ministers “intend” is irrelevant. The Minister has said that there would be no change in the balance of power. How precisely does he intend to enforce that?

[Jesse Norman]

Is my hon. Friend as concerned as I am by the example of Scotland? Although Mr Salmond has no mandate to call a referendum on Scottish independence, it seems absolutely certain that he will do so in the next two to three years.

[Mr Ruffley]

That is an excellent point. We heard some sensible observations along those lines from other Conservative Members earlier. It would be a case of mission creep. It is not something that anyone would specifically intend and it would not be explicit in a Bill, but it would be implicit in the granting of powers to a new set of elected individuals who would claim legitimacy and a democratic mandate. I ask again why we should wish to duplicate the mandate that elected individuals have when those individuals are here, in this Chamber?

When it was studying the upper House, the Joint Committee on Conventions said that if the conventions between the Houses were to change—which would be inevitable if there were elections to the upper House—all the conventions and Acts involved in their relationship would have to be examined again. Will the Minister undertake to re-examine the conventions and Acts governing the delicate balance between this Chamber and the upper House?

Many of us are not luddites. We know that practical reform of the upper House could be effective in certain respects, and could make it more efficient. My hon. Friend the Member for Bournemouth West gave us a flavour of some of the changes proposed by Lord Steel, who suggested the establishment of an independent commission that would limit the number of peers. He also suggested that the 92 hereditaries, as and when they died off, should not be replaced, and that peers who did not attend for a defined period should lose their right to speak and vote, as should those who committed serious criminal offences.

I consider it unacceptable, in this day and age, that in the last year 137 peers did not table a question or make any contribution to debates in the upper House. We can change that, and we can do so along sensible, practical lines that most Members of both Houses would sign up to tomorrow. The upper House should not be pickled in aspic—we should not be luddite in any way—but, although it can be improved, the Bill is not the way in which to do that. We fumble with the rich and delicate texture of our constitution at our peril, and we should beware the law of unintended consequences.

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[Henry Smith (Crawley) (Con)]

I am very grateful for your calling me to speak in this debate, Mr Deputy Speaker, although I admit that for the first time in 13 months I do so with some trepidation, because, given the interventions and sedentary comments of those sitting close to me, I suspect that this is one of those arguments on which we will respectfully have to agree to disagree.

In case it has escaped anybody’s notice, we are at the beginning of the second decade of the 21st century, and in a democratic country it is anathema that both Houses of Parliament should not both be democratically elected. The ultimate question in a democratic system is, “Who appoints the representatives?”, and the ultimate answer is that only the people should be empowered to do so.

We have heard about the 61 other bicameral Parliaments throughout the world and how the vast majority have two fully elected Chambers, and that is absolutely right. Throughout the world, throughout the Commonwealth and, although it pains me to say it, throughout Europe, we see that that democratic structure is the norm. The United States Congress, with its House of Representatives and its Senate, is probably the predominant example, and 49 of the 50 American states have fully elected bicameral systems, too. There we have systems that work extremely well and, indeed, provide a greater check and balance than we have in our own Parliament.

In the Commonwealth, perhaps the best example is the federal Australian Parliament with its House of Commons and Senate, a system that, although no system is perfect, works extremely well for the people of Australia. That system goes for most Australian states as well.

[Jesse Norman]

My hon. Friend is making a powerful and interesting speech, but he is surely aware that the vast proportion of the legislatures that he describes operate under codified constitutions that explicitly prevent power leaching from one side to the other. Does he propose a codified constitution in this case? That is surely the counterpart of the undoubted change in conventions that would occur if there were an elected Lords.

[Henry Smith]

My hon. Friend anticipates the remarks that I hope to make in a few moments.

Several weeks ago I was in Poland, where I was fortunate to meet the Speaker of the Polish Senate. That country saw its Senate abolished under the Communist totalitarian regime but, happily, had it democratically restored approximately two decades ago, and again it is a system that works very well.

My main point—I hope this answers my hon. Friend’s question— is that I do not look to the rest of the world to tell me the best way to construct our Parliament; I look to our proud British history. We have had Parliaments in these islands for the best part of 1,000 years, and I am struck by the coincidence that 2015 will be the 800th anniversary of Magna Carta, which is probably one of those points that set us off on our constitutional journey.

Since then, we have had the civil war, which in a greater way established the sovereignty of this Parliament, the Bill of Rights, the Reform Acts starting in 1832, the Parliament Act exactly a century ago, universal suffrage for women following the first world war and the Parliament Act 1949.

We are an evolving constitution, and we are a country that to its credit has proudly developed the principles of liberty and participative democracy over the best part of many centuries, but, as we are at the beginning of the second decade of the 21st century, an evolving constitution to my mind says that the only legitimate second Chamber for this Parliament is a wholly elected second Chamber, because 100% is the most legitimate and best way forward.

I do, however, want to make a couple of remarks about the draft Bill. I am pleased to note that it is a draft Bill, and I congratulate the Government on that and on the Joint Committee, because it is important that we feed in as many views as possible to what is an important constitutional change.

Time does not allow me to elaborate too much on the pros and cons of 15-year terms, but I suggest, first, to the Government that there should be a power of recall over any future elected Member of the House of Lords. I am sure that the vast majority of them will diligently carry out their duties on behalf of this Parliament and the country.

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[George Eustice]

I accept that to some extent, although judges often make public policy decisions, and those judgments influence our legal system. However, my point is that we do not need elections for these institutions to be legitimate.

[Jesse Norman]

It is not true that judges do not have a role in making the law. For 700 years, common law judgments have been made in difficult cases that have laid down what is the law as a result. This position has always been understood by the judges. A famous lecture was given on the topic by Lord Reid in the 1960s. I am sure that my hon. Friend agrees that we should have no truck with the idea that judges do not have a thoroughly legitimate, though unelected, place in the constitution.

[George Eustice]

I share my hon. Friend’s view entirely.

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[Jesse Norman (Hereford and South Herefordshire) (Con)]

I am delighted to follow my hon. Friend the Member for Carmarthen West and South Pembrokeshire (Simon Hart) and congratulate him on an excellent speech. This Government will be seen in time as one of the great reforming Administrations, but I must say that I am not an enthusiast for this legislation. I will focus on one argument that goes to the heart of the debate. It has been repeatedly claimed that an elected House of Lords is a commitment set out in all three main party manifestos and that the Government and the Opposition would therefore be justified in using the Whip and the Parliament Act to push it through. If we look at the manifestos, however, we can quickly see that this argument is mistaken. The Liberal Democrat manifesto includes just three references to the House of Lords and includes a commitment to “a fully-elected second chamber”, so Liberal Democrat MPs who vote for an 80% elected Chamber will be voting against their manifesto.

The Labour manifesto does better, because it has five references to the Lords, but its commitment includes a referendum and the Bill does not, so Labour Members can hardly be whipped to vote for an elected Lords without the democratic legitimacy of a referendum.

What does the Conservative manifesto say? There is just one reference to an elected House of Lords, on page 67, and it is not deemed sufficiently important even to be included in the summary at the head of the chapter. It states:

“We will work to build a consensus for a mainly-elected second chamber to replace the current House of Lords”.

That is a commitment not to an elected House of Lords but to

“work to build a consensus.”

We have a White Paper and a draft Bill, so that commitment has been discharged, and on those grounds alone it would be quite wrong to use the Whip or the Parliament Act to force Members of this House to vote for this legislation. There must be a free vote.

The House of Lords is an imperfect institution, as even its own Members concede. Its powers, composition and legitimacy have all come in for severe criticism over the years from different parts of the spectrum, but I am at a loss as to why anyone should want a Lords that was more party political, less expert and more expensive than it currently is. There is widespread public distrust in elected politicians, but this measure serves only to aggravate that distrust when we should be doing everything that we can to restore it.

[Several hon. Members]

rose—

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[Chris Bryant (Rhondda) (Lab)]

It is a delight to follow the hon. Member for Hereford and South Herefordshire (Jesse Norman), although that was the most casuistical argument based on party manifestos, and I completely disagree with him.

My central argument in favour of reform of the second Chamber is that the current system is unsustainable, in particular because of its effect on this House. At the moment, that House infantilises this House, because all too often Ministers stand up in this Chamber and refuse to give way or to agree to a perfectly sensible amendment, and then the Government go down the corridor and give way in another House.

Quite often, civil servants—whom we all love—say to their Minister, “What are you going to give away when you get down to the other end of the building?”, and that means that we do not do a proper job of scrutiny in this House. We will never do a better job of scrutiny in this House until we reform the other House, and that is why it needs to be changed.

[Jesse Norman]

Will the hon. Gentleman give way?

[Chris Bryant]

I will not, if the hon. Gentleman does not mind, because he has only just spoken. Some 34 Back Benchers spoke, and I want to reply to as much of the debate as possible.

The current system is also unsustainable simply because of the numbers. There are already more than 800 Members down the other end, and if we do not make reforms towards an elected second Chamber, we will end up with another 269.

Oral Answers to Questions

Jesse Norman Excerpts

Tuesday 24th May 2011 Commons Chamber

[The Deputy Prime Minister]

A seriously surreal doctrine is emerging. The hon. Gentleman was unable to persuade his colleagues to exclude the issue from the manifesto, so he wants to circumvent the manifesto on which he stood at the last general election by way of a referendum.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

T7. I know that the Deputy Prime Minister shares my view that the influence of lobbying can cause serious defamation to the democratic process. Will he update the House on the status of his register of lobbyists?

[The Deputy Prime Minister]

The Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for Forest of Dean (Mr Harper), has announced in the House that we are consulting on that matter. We hope that the consultation will proceed during the summer to meet the objective in the coalition agreement of creating a register of lobbyists.

House of Lords Reform (Draft Bill)

Jesse Norman Excerpts

Tuesday 17th May 2011 Commons Chamber

[The Deputy Prime Minister]

As I specified earlier, all we are envisaging is that if future Prime Ministers wish to appoint Ministers, they must make sure that those Ministers are for the duration of their ministerial office held to account by either this place or the other place, and that one way of achieving that objective, which is to enhance and strengthen the accountability of the Executive to the legislature, is to allow Prime Ministers in a small number of cases to appoint Ministers on a supernumerary basis for a temporary period during the time that they hold ministerial office.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

A reform of the House of Lords is undoubtedly needed, but this is not a reform measure. It contemplates the abolition of the House of Lords and, with that, reduced diversity and reduced expertise in our public life. Why did not the Deputy Prime Minister use this opportunity genuinely to reform the House of Lords by adopting the Bill of the noble Lord Steel, which would remedy many of the deficits that currently exist?

[The Deputy Prime Minister]

In many respects the provisions of Lord Steel’s Bill are in part covered by the proposals that we are putting forward. For instance, one of the central planks of his Bill is that there should be an independent statutory appointments commission. That is exactly what is envisaged in this Bill. Another part of Lord Steel’s Bill provides for retirement of existing Members of the House of Lords. That has been taken up by the Leader of the Lords already. I do not think the ideas in Lord Steel’s Bill are incompatible with the longer-term reforms that we are proposing today.

Big Society

Jesse Norman Excerpts

Monday 28th February 2011 Commons Chamber

[Jon Cruddas]

I take it then that the plan for a Select Committee on civil society is suspended for the time being because it is covered by the Public Administration Committee.

I have to make an admission: I quite like the notion of the big society. It returns us to issues of duty, obligation, service and contribution that should be the hallmark of all political parties, so I do not think that a monopoly is obtained by any party. Moreover, I resist the simple notion that the big society is a sham and simply a veneer for ideologically driven cuts, not least because, as the hon. Member for Dover said, the Prime Minister’s attachment to that agenda predates the economic crisis and the onset of the cuts. I have read a number of what are supposedly the key texts in the big society debate. I refer hon. Members to the pamphlets of the hon. Member for Hereford and South Hertfordshire on compassionate conservatism and compassionate economics—his big society book.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

I am deeply grateful for that wonderful accolade but may I point out that it is Hereford and South Herefordshire, not to be confused with the doubtless equally marvellous county of Hertfordshire?

[Jon Cruddas]

I stand corrected.

There are some points of common ground in the texts that I have seen, which are interesting and add to the sum total of public knowledge. Aspects of the big society could lead to people having more control over their lives and to the creation of a more responsible society. That is a good departure point for the discussion today. Labour should welcome that and support empowerment and social responsibility.

I therefore refer Members to a pamphlet entitled “The Politics of Decency” written by my right hon. Friend the Member for Salford and Eccles (Hazel Blears), who cannot be here today, a number of years ago, which set out many of the terms of the current debate; her substantive policy proposals predated many of them. However, despite all the warm words that I am offering for the agenda, my reservations start to become apparent when we talk about delivering empowerment and social responsibility on the ground.

I suggest that, for three basic reasons, the Government agenda will not succeed in delivering on its stated objectives. First, it is weak on the role of the state. Witness the amendment that was not selected, which clarifies some of the views of the Conservative party on the matter. Secondly, the agenda does not have a robust enough approach in its criticisms of the private sector. Thirdly, the agenda is essentially silent on central issues of social justice.

Fundamentally, the big society agenda is about a redistribution of power and responsibility away from Whitehall and towards local government, intermediate organisations, local communities and individuals. However, the Government will be unable to achieve that. Consider the argument that the Government are uncertain, to put it in a charitable way, on the role of the state. The Prime Minister regularly acknowledges that the state will have to play an active role in building the big society, but what is happening on the ground? The Government want to encourage giving, but despite lobbying from the charitable sector, they have said that they will drop transitional relief on gift aid, worth around £100 million a year. The Government want to encourage community ownership and management of local assets built around the right to buy in the Localism Bill, but in reality they prefer to flog public sector assets off to the private sector. Witness what happened on the forests. A similar thing is happening with the £500 million of regional development agency assets. There is clear potential for something similar to happen with the £37 billion of primary care trust assets.

Moreover, the Government say that they want more third sector delivery of public services, but the detail of their policies will not necessarily enable that to happen. For instance, where their reforms are most advanced in terms of welfare to work, the scale and cash-flow requirements of the contracts mean that the vast majority will go to very large private sector firms, which then may or may not subcontract to charities or social enterprises, and may or may not do so on a fair basis. I have heard that the welfare Minister in the other place recently said that he anticipated a “perfect car crash” among providers. That is dangerous, because of the human consequences, and because providers will go to the wall as a result. Future examples could include offender rehabilitation and health.

Another example is the way in which the Government want to encourage public sector workers to spin out and form independent mutuals. I was recently told that the Secretary of State wants one in six public sector staff to do so by the end of this Parliament. Under the Labour scheme, those public sector workers could keep their pensions, received significant transitional support, and were guaranteed a three-year contract.

I tentatively suggest that none of that would be the case under the Tory plans. Communities have a right-to-buy asset, but minimal support to do so. They have the right to challenge local public services, but minimal support to do so. Public sector staff have the right to provide or to spin out, but minimal support to do so. We must consider alongside that the inability to deliver because of the cuts. If the big society is about more than informal acts of generosity, we need the infrastructure to provide it: people to train and manage volunteers, and people to win public service contracts and ensure that the services are delivered to a consistently high standard. That infrastructure has been hit. The Association of Chief Executives of Voluntary Organisations estimates that the voluntary sector will lose £1 billion as a result of cuts, the loss of gift aid transitional relief and the rise in VAT.

The cuts to the sector are beginning to stack up. Charities and voluntary groups in London have been subject to cuts of £50 million in the past 12 months. Council community grant programmes have been cut up and down the country. The list is growing by the day, and includes mental health services, autism charities, rape and crisis support centres, stroke associations, career support services, carers, housing and homelessness charities, YMCA branches, citizens advice bureaux and children’s charities. Similarly, some cuts to benefit services will leave people feeling less in control of their lives, not more. They include cuts to disability living allowance, tightened thresholds for social care, cuts to Supporting People budgets and cuts to housing benefit. That reflects a failure to deliver the big society.

The Government are silent on the private sector. If people feel disempowered vis-à-vis the state, the same applies to their relationship with the private sector. The Government essentially say nothing on redistributing power and responsibility in that regard. For example, they propose to reduce workers’ rights in the “Resolving workplace disputes” consultation, yet beyond praising best practice, they do not appear to have much appetite for doing anything practical to encourage more corporate social responsibility by giving time or money to good causes. Such contributions are significantly lower in the UK than they are in the US, which relates directly to levels of civic engagement and volunteering. For example, 82% of people who do not volunteer but would like to do so cite lack of time as a reason, and research by the Cabinet Office recently found that half of employees would like a volunteering and giving scheme to be established by their employer.

--- Later in debate ---

[Paul Flynn]

I am glad to have heard that explanation. I was also relieved to hear from the hon. Gentleman that we are not going to have volunteers doing brain surgery.

We should all beware of Prime Ministers bearing three-word gimmick policies. I have served in this House under six Prime Ministers, and I remember “the cones hotline”, “the third way” and “back to basics”. Now, we have “the big society”. I think that the big society has most in common with the cones hotline. These were all pet subjects of various Prime Ministers who were willing to distort their own priorities to find money to plough into them over and above their general policies. There will be a degree of cynicism, when the cuts are taking place in all directions, if money is available to employ volunteers—

[Jesse Norman]

For some unaccountable reason, the hon. Gentleman seems to have forgotten the third way, which was possibly the most bankrupt of all these ideas.

[Paul Flynn]

I mentioned the third way. The hon. Gentleman has only recently joined the House, but he might know that I was not the most enthusiastic supporter of the previous two Prime Ministers. The third way was a candyfloss and vacuous policy, as is the big society, and no one ever knew what the first and second ways were, let alone the third way. I am sure that my Front-Bench team will reinforce the point, but a host of initiatives have already taken place over many years.

--- Later in debate ---

[Tristram Hunt]

I thank the hon. Gentleman for his intervention. That is an acute question. I do not always accept the notion of crowding out, although there are times at which one can point to that.

The Labour tradition, as it has evolved, has sought to create a critical relationship with local government and central Government, and that is the difference between ourselves and Conservative Members. As my hon. Friend the Member for Leicester West suggested, the enabling state is part of the Labour tradition. When we look back to where we have come from, as my hon. Friend the Member for Walthamstow (Stella Creasy) will imminently explain in beautiful prose, we can go right back to the late 18th century to the traditions of Paine and of critiquing the functioning of the market while believing in market principles. This was based on a belief that the state was not always a force for good. As Adam Smith argued, the state in the late 18th century was often a force for arbitrary activities, clamping down on the rights of working people and interfering in proper market practice.

[Jesse Norman]

I am thrilled by the robustly Conservative —indeed, Burkean—tone of the hon. Gentleman’s comments. However, I am interested in his support for Paine. Does he really believe that a person who backed the French revolution and its support for abstract rights over and above the legal privileges of the free-born Englishman deserves his support, and that he can be invoked in the context of the big society?

[Tristram Hunt]

I thank the hon. Gentleman for his intervention. The wonderful thing about Paine is that he can be invoked on almost any issue, and in this particular seminar we are talking about the associationalist Paine rather than the Jacobin Paine.

Another part of the Labour narrative is the Owenite tradition, which was about co-operation rather than competition, and about man’s character being formed through his interactions with others rather than through being born with original sin, which was the Conservative position. We can also point to the Liberal tradition of the Rochdale pioneers—this, too, is part of the Labour story of co-operation, self-help, mutualism and self-improvement. We have to ask why these institutions and forms came into being. Why did working people club together in friendly societies, trade unions, burial societies and other associations? It was because of the failings of the mid-Victorian big society—the failings of noblesse oblige, Lady Bountiful, the night watchman state, and the attacks that we still hear today, whether on health and safety or over-regulation. It was a Tory vision which failed for millions of working people, and that is why our tradition of mutualism, associationalism and the big society came into being.

[Jesse Norman]

I noticed the subtlety with which the hon. Gentleman moved from a critique of Victorian society to a critique of the Victorian state. Can he outline the terms in which the state was able to support the development of these priceless independent institutions which we all now celebrate?

[Tristram Hunt]

I thank the hon. Gentleman, who is right in one sense: part of the brilliance of the British tradition is our ability to create all sorts of forms of associational activity, be it limited liability companies or co-operatives. However, Labour Members point to our particular tradition of mutualism and associationalism, which comes from a failure of the Tory approach.

I would happily wax lyrical about the Labour tradition for many minutes to come, but I suggest to my hon. Friends that we cannot be too romantic about the past. Many of the worst actors in the recent financial crash were mutual organisations with co-operative governance structures. There is no inherent virtue in these modes of organisation that protects them from the kind of activities that we saw. As my hon. Friend the Member for Dagenham and Rainham (Jon Cruddas) said, we need to think innovatively about how we take these forms into the 21st century. We need to think about tax advantages for employee benefit trusts, the right to request the mutualisation of public services—as well as what that means for pay and conditions—and systems of asset locks. A relevant and credible example of this was announced by Ministers today regarding the future of British Waterways. The Government seem to be heading towards the charitable model, but many Labour Members will think that a co-operative model, with all the differences that that entails, would be the best way. I am more hopeful about the hon. Member for Dover’s plans for Dover harbour.

The difference between Labour and the Conservatives as regards the big society is about the history of co-operation with forms of government—first, in the mid-19th century, with local government, again following Tory failures. In Manchester, in Birmingham and across the country, there was a coalition of the associationalist, mutualist tradition and local government. Then, in the early 20th century, when the new Liberals actually believed in progressive politics, it was a coalition with the central state based on the belief in an enabling state and a relationship between forms of civil society and forms of the state. That continues today in relation to the big society and our politics. We believe in a relationship with a progressive, activist, enabling state.

That brings me to the crux of the issue. Various Conservative Members have pooh-poohed us for suggesting that there is an ideological element to the Government’s thinking and said that because the Prime Minister wrote an article six years ago in which he might have hinted at some of these ideas, we should think that there is some noble tradition involved. The big society is being used as a vehicle for justifying some of the major cuts and assaults on the state that we are seeing today. As my hon. Friend the Member for Makerfield (Yvonne Fovargue) pointed out, voluntary institutions—the building blocks of civil society and of many of our communities—will be undone by the Government’s cuts, which are going too far and too fast. Some of the communities that we represent need capacity building, capability building and investment building. I say that not because, as the hon. Member for Pudsey suggested, we believe that poor people cannot organise themselves, but because we believe in investing in those communities to achieve better outcomes rather than ripping away support for citizens advice bureaux, youth services and all the other developments that are taking place. I took a delegation of organisations from Stoke-on-Trent, including Chepstow House and the citizens advice bureau, to see the Minister, who kindly listened to us as we pointed out the serious troubles that they will face—that the big society will face—as a result of this Government’s plans.

There are confusions in the Government’s belief in the big society. We are seeing, on the one hand, their ripping away of the capacity building that is necessary, and on the other, as in the case of the NHS and what they tried to do with the Forestry Commission, a neo-liberal belief in the market that has very little to do with an organic state-civil society relationship. The mixed social economy is best, with the virtue of the state and the virtue of civil society building up communities, but also reforming the state and, crucially, reforming markets as well.

--- Later in debate ---

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I am delighted to speak in this debate and I am pleased that the hon. Member for Dover (Charlie Elphicke), who unfortunately is not here, secured it.

Many hon. Members have set out the historical traditions behind this debate, but I come at it from a slightly different angle—as a psychologist analysing participation, the proposals that have been put forward for the big society, and the evidence base. From that angle, it seems that we start with a puzzle. In the points put forward by Government Members about the problems that they have experienced with public services and regulation, there is nothing to suggest that the removal of the state and the propagation of the voluntary and private sector will always achieve better results. Nor have we have seen any evidence about what shape the commissioning may take at either local or national level, and who will make the decisions or participate in that process.

Above all, many Labour Members, and I believe some on the Government Benches, wonder how a concern for increasing social activism fits with a Government who want a cut in spending in and of itself. That appears to many of us to be not so much nudging as shoving people into volunteering through a cut in public services, and that is likely only to destroy the social fabric with which we are all concerned. It is not often that I find myself on the same side as Phillip Blond, but we agree that making radical change is hard at the best of times and near impossible at times of extreme austerity.

I come to the big society, then, not with stories of jobsworth local officials or quotations from Burke, or perhaps even Paine, but with a more fundamental problem facing the Government. It is impossible to ally a Conservative ideology—the prejudice that personal liberty and the role of markets are undermined by collective action—with the recognition that when people work together to fund, run or do something, it has the power to change the world.

With that in mind, I wish to set out four problems that I see with the big society, and an alternative proposal based on the principles of fellowship that I see emanating from the left. The four problems are simple. First and foremost, it is a process-focused philosophy, and as such its purpose cannot be set out. Secondly, its shows a misunderstanding of the nature of contemporary voluntary sector organisations. Thirdly, it shows a misunderstanding of the nature of modern communities and communal bonds, and fourthly, it takes no account of the lives that people lead or the willingness of the public to engage.

The question of purpose goes to the heart of political ideologies and public office. The big society, as currently articulated, seems to be very much about processes, not purposes, so it is about the process of volunteering or social action rather than the ideas behind it. Fundamentally, therefore, it cannot tell us what explains or sparks volunteering. A vague sense of shared interest and neighbourliness is not enough to hold and sustain involvement. Anybody who has had neighbours that they have not got on with, or been in voluntary organisations with people to whom they would not necessarily send a Christmas card, can explain that to us.

[Jesse Norman]

I think that is quite wrong. There is a large literature—I am sure that, as a psychologist, the hon. Lady is aware of it—showing that people are happier and live healthier, more contented, longer lives when they are able to link with other people and exercise compassion. The big society draws on such emotions, and it is simply nonsense to say that there is no substance behind it. Her own discipline contains a vast amount of evidence for it.

[Stella Creasy]

I appreciate the hon. Gentleman’s passion for the subject, but if he lets me continue, he will hear that I am not saying that there is no substance behind it. I am saying that by not setting out the purpose of the big society, the Government leave themselves open to acknowledging a whole range of volunteering activities that they may not want to support. Taken to extremes, for example, the Ku Klux Klan and the English Defence League would be seen as wanting to bring people together for a particular purpose in their local community, but I am sure that none of us would want to promote such organisations and their values.

[Jesse Norman]

One marvellous thing about the set of ideas behind the big society is precisely that it is not subject to any overwhelming social purpose. A purpose for society, and a plan to put it on a purposeful basis, is a recipe for totalitarianism.

[Stella Creasy]

The hon. Gentleman and I therefore disagree about the value of purpose. I believe that purpose, and particularly people coming together with a common bond and for a common purpose, is how we get social change to happen. That is where there are disagreements between us about the value of the big society.

[Jesse Norman]

rose—

[Stella Creasy]

I am going to press on, because I do not have much time.

We on the left have always understood that for any organisation to work, it needs a sense of purpose and a common goal. It needs to know what it is trying to achieve, not just how it will try to achieve it. People can then be brought together around that current goal.

That leads me to my second point about why purpose is so important in the big society. It seems to me that in the points that are being made about it, a whole series of objectives are conflated, whether democratic engagement or increasing volunteering. We all understand that volunteering is not the same as voice, but the conflation of more meetings at a local level with encouraging more people to volunteer and looking to commission more within the voluntary sector seems to reflect a lack of purpose.

--- Later in debate ---

[Jesse Norman (Hereford and South Herefordshire) (Con)]

I am fortunate indeed to live in Herefordshire, which is the very model of the big society in action. I congratulate colleagues on both sides of the House on sponsoring this important debate. I agree with the insight of the hon. Member for Darlington (Mrs Chapman) that we are all motivated by a sense of public duty, and it is on that ethos of public duty that the big society seeks to draw.

I remind the House of something that is easy to forget. The big society is the most important idea in British politics for a generation. It is not like the so-called third way, as was acknowledged by the hon. Member for Newport West (Paul Flynn). The third way was a piece of triangulation designed to allow Mr Blair to have his political cake and eat it. This, however, is a fundamental rethinking that tries to lay the groundwork for our social and economic renewal as a nation. As such, its natural span is not over days and weeks, but years and perhaps even decades.

The Labour party helped to dig the huge hole of indebtedness that this country now finds itself in. It is a great shame that it is now trying to use the present economic crisis to take cheap political shots at the idea of the big society itself. This is an idea which it should support, not disparage—many Labour Members have already shown that, in some cases, it supports the idea.

At its deepest, the big society seeks to correct some glaring flaws in our most basic political assumptions. Ever since Hobbes 350 years ago, we have been taught to think of politics in terms of just the state and the individual; to see individuals as basically self-interested and financially driven; and to ignore the independent institutions that populate our lives and give them point and purpose. Those assumptions have been the basic drivers of Government policy for the 20th century.

The big society rejects those dogmas. Its focus is precisely on what they leave out: first, the value of free institutions, from the family to the school to the village pub, the city and the nation state; and secondly, a generous conception of human beings as social animals seeking to express their capabilities and to trust and to link with others. That is why volunteering, for all its value, is just one part of a far bigger picture.

[Tristram Hunt]

Does the hon. Gentleman have any sense that he is slightly over-selling this particular project? He talks about Hobbes casting a shadow for 300 years, but the trade union movement, associationalism and mutualism—all those elements of human capacity—have been a part of the Labour tradition for the past 200 years.

[Jesse Norman]

I think that those elements have been in British society for 200 years, but they have been very far from the ethos of the Labour party, as I will shortly demonstrate.

The big society is not itself either a left or right-wing idea. For one thing, it contains a deep critique of the market fundamentalism of the past three decades, and the past decade in particular—the idea that free markets by themselves are the solution to all of life’s ills. But, crucially, it also repudiates, as William Morris himself would have repudiated, the state-first Fabianism of the modern Labour party.

I am not an enormously ideological person, as the House will know, but I will waive my scruples in this particular case. In 1900, the political left was a teeming mass of different political traditions, encompassing guild socialism, religious non-conformism, civil dissent and suffragism, many shades of Marxism and communism, and mutuals, co-operatives and unions. There was no reason why that astonishing plurality had to yield a political party which for over 60 years has emphasised centralised state provision of public services above all else. On this point, I agree with the fragrant hon. Member for Stoke-on-Trent Central (Tristram Hunt). [Hon. Members: “Fragrant?”] I use the word advisedly. That happenstance was the result of an intellectual takeover of the Labour party by Fabianism—the doctrine that intellectuals can make over society according to scientific principles using the spending and legislative powers of the state. Labour’s Fabian leadership—let us not forget that every Labour Prime Minister has been a Fabian—quickly made common cause with the unions, and that trend has worsened.

Under its present leader, Labour is even more in thrall to the unions than it was then, with £9 out of every £10 coming from union support, which effectively sets a massive dilemma for the Opposition. On the one hand, their leader can stay within the Labour comfort zone, and remain the darling of the unions and of the left of his party, trying to use the economic recession to political effect like the shadow Chancellor.

[Tristram Hunt]

Will the hon. Gentleman give way?

[Jesse Norman]

Yes of course. [Interruption.]

[Tristram Hunt]

I apologise for my colleagues. During his wonderful speech, is the hon. Gentleman at some point going to tease out his pre-history in Barclays bank and the role of market fundamentalism in driving us to the crisis and hence the cuts and hence the veneer of the big society.

[Jesse Norman]

That point is ad hominem, but I am delighted to do so. I went to Barclays having run a charity in eastern Europe during the communist period giving away educational materials and medical textbooks to hospitals. I joined Barclays to work in eastern Europe, and I did so.

As I have said, the Labour leader can try to use the economic effect like the shadow Chancellor, who has attempted to rewrite the history of the deficit and his own role in it. The trouble, as we know, is that that is not a credible position, and the public know it. Alternatively, the Labour leader can reach out and seek to build a political coalition, as Blair did before him. He will know that a purely sectional appeal has cost the left roughly seven years in government since Labour became the official Opposition in 1922, but that more ambitious approach carries its own risks: it requires a more nuanced approach to the economy; it requires him to face down the unions, as Blair did over clause 4; and it requires Labour to rediscover its older, non-Fabian traditions—the traditions of Morris, Robert Owen and many of the people who have been mentioned today—and make them live again in its policies.

Which alternative is it to be? The truth is that the Leader of the Opposition is a little confused. In November, he said that Labour must reclaim the “big society” concept, and he made that the task of a major policy review. Just this month, however, he said that the idea is doomed, so we must ask whether he will recall his policy folk as a result. Must his squadrons of wonks return to barracks? What is his policy review to do, if the big society is, as he suggests, both doomed and a concept that Labour must reclaim.

In fact, the Leader of the Opposition was closest to the truth in his speech to the Labour party conference last year, when, under the influence of Lord Glasman and perhaps the hon. Member for Dagenham and Rainham (Jon Cruddas), he said:

“I believe profoundly that government must play its part in creating the good society. But our new generation also knows that government can itself become just such a vested interest. That unless reformed, unless accountable, unless responsive, government can impede the good society.”

His union backers may wish to look again at those words. Accountable, responsive government—government which is not a vested interest or an impediment to society. I congratulate the Labour leader on those remarks, which were spoken like a true Conservative.

Fixed-term Parliaments Bill

Jesse Norman Excerpts

Wednesday 1st December 2010 Commons Chamber

[Mr Jenkin]

I am grateful for that assurance. The Minister, who in all these debates has shown impeccable manners and tact despite the pressure he is under, should be looking for an alternative way of delivering this part of the coalition agreement, to which the hon. Member for Stoke-on-Trent Central (Tristram Hunt) alluded.

The Speaker’s decisions will be taken under immense political pressure, as he decides what constitutes a confidence motion, what amendments might be tabled to amend a confidence motion, whether, if carried, that would invalidate the motion, whether the amendment could constitute a motion of confidence, and the consequences of amendments being carried or the motion being carried.

I quote again from the Clerk’s memorandum:

“As these would become justiciable questions, the courts could be drawn into matters of acute political controversy.”

I respect the fact that many in the House think we should have a Supreme Court like the European Court of Justice in the European Union or the Supreme Court of the United States, which is essentially a political court, but that is a very big constitutional change. We ought to have a royal commission about it, there ought to be debates on the Adjournment about it and the implications of drawing the courts into politics, if that is what we are going to do, ought to be properly explored. The way in which the Supreme Court is appointed to make it accountable for its political judgments is another important question.

We are importing continental and American-style jurisprudence into our judicial decision making. Some judges are becoming more and more adventurous about how they interpret statute and where they feel entitled to make judicial interpretations, and the Bill invites them to decide when there might be a general election under particular circumstances.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

Will my hon. Friend distinguish between two things: judicial activism, where there is extraordinarily little evidence that judges in this country are overreaching, although the same is not necessarily true in Europe and in the European Court, and impingement on the prerogatives of Parliaments, which is what the Bill covers? We should be focusing on the latter point.

[Mr Jenkin]

I am perfectly prepared to accept that point. I refer to judicial activism only because there are champions of judicial activism who would like the courts to be more judicially activist. The Bill creates circumstances whereby we tempt judicial activism, which is contrary to our legal traditions. It increases the danger of the Government’s assurances simply not being delivered, or of their not being able to make these assurances with any confidence.

The Clerk, in his memorandum, specifically says:

“In the case of Clause 2(3) it would be for the court to determine whether a document issued by the Speaker was a ‘certificate’ for the purposes of that clause. It is not impossible for a court to take the view that what appeared to be a certificate was not a ‘certificate’”.

The memorandum has been considered by the Select Committee, which attempted, in the short time available, to conduct pre-legislative scrutiny. It reached two principal conclusions. Paragraph 8 states:

“The Government needs to respond to the concerns expressed by the Clerk of the House of Commons about the potential impact of clause 2 of the Bill on parliamentary privilege.”

Paragraph 9 states:

“The purpose of the Bill needs to be achieved without inviting the courts to question aspects of the House’s own procedures or the actions of the Speaker, except where this is absolutely unavoidable and clearly justifiable.”

The qualification reflects the fact that on the Committee there was some disagreement about the seriousness of the threat and between those who are in favour of a written constitution and those who are in favour not of a written constitution but of the settlement that relies upon our immunity.

On whether there are alternative ways of achieving the Bill’s intentions without the risk of judicial interference, the Committee noted, in paragraph 38:

“As the Committee has noted, setting out the requirement in Standing Orders would not be satisfactory because Standing Orders can be amended, suspended or revoked by a single simple majority vote of the House of Commons only.”

That is not correct. I have taken further advice from the Clerks and I have a letter from the Clerk Assistant and Director General, Mr Robert Rogers, which, if the Committee will indulge me, I will quote. He explains that there is a precedent of super-majorities in Standing Orders being used, for example, on closure motions in the 1880s. He says:

“As to the practical issue of a “super-majority” SO being able to be amended or repealed only by a super-majority, I see no difficulty. The Speaker would be the arbiter of whether a motion…either was (a) orderly and (b) had been agreed to; he would be bound by the Standing Order (which should perhaps contain an explicit prohibition on “notwithstanding”-type Motions), and his decision would be beyond any external review.”

That neatly and devastatingly removes the need for the entire Bill. We could be operating entirely through Standing Orders, which would be protected by the super-majority that the Government want to embed in legislation for general elections. It leaves the question of why the Government are resisting this advice.

Amendment 6 is a more elaborate way of saying what the Government have already put in the Bill. I would be the first to accept that it may be regarded as a more elaborate bit of sticking plaster, because the clause will be subject to judicial interpretation. A certificate could not be presented to the courts—not even the Speaker could present one to a court for adjudication. The word “whatsoever” in the amendment means that we are referring not just to our own courts, but to the European Court of Human Rights, which is not just a figment of some Eurosceptic’s imagination. The Clerk himself has adverted to the fact that the ECHR, under article 10, could be adverted to as a cause for judicial review.

If a Member of Parliament was prevented from voting in the motion of confidence, they could say that their vote should be taken into account for a valid certificate to be issued by the Speaker. They could therefore mount a challenge saying that the certificate was not valid because they were prevented from voting. A question also arises if sick colleagues cannot get into the Lobby and are nodded through. Would that constitute a ground for challenging a vote of confidence?

[Jesse Norman]

Was not there an example in the 1970s of whether a Member had been able to vote? There was a tied vote and Harold Lever, I think I am right in saying, felt that he had not been able to exercise his vote. He might have had grounds under this Bill, if the Clerk is right, to invoke the care and attention of the courts.

[Mr Jenkin]

My hon. Friend adverts to an extremely relevant precedent. What would happen if a two-thirds majority was obtained, or not obtained, by just one vote, or the Speaker interpreted the result as a vote of confidence where there was one vote in it that was represented by somebody who was or was not present for whatever reason? These are very dangerous areas.

I have two final points, and I am grateful for the indulgence of the Committee in allowing me to quote extensively from documents. The Bill is being driven by an extraordinary consensus on some issues and by the fact that it is so close to the survival of the coalition that it is difficult openly to debate it. The Prime Minister said before the election that Committee stages of Bills should not be whipped, so that what a Committee thought can be understood. The Whips are out in force today, and I do not think that we will really find out what Members think about it. However, that invites the other place to look at the privilege and immunities of the House, and to propose comprehensive amendments that protect Parliament from judicial review.

--- Later in debate ---

[Chris Bryant]

That is an interesting point. The Bill of Rights refers, I think in section 9, to the fact that proceedings in Parliament shall not be touched by any other court. The moot point then is what constitutes a proceeding in Parliament. There have been many discussions about this over the past couple of years, not least in relation to the arrest of the hon. Member for Ashford (Damian Green). The hon. Member for Harwich and North Essex is right in one sense. However, I have presumed—this is the advice that I had when I sat on the Government Benches as Deputy Leader of the House—that parliamentary privilege covers proceedings in Parliament and the whole of the Standing Orders of this House, because that how this House chooses to proceed. I think that there is greater security in the Standing Orders of the House.

Another issue is how we ensure that the Speaker is not dragged into a partisan contest, particularly at a moment of great political drama. As I said in an earlier debate, my concern is that if it is left for the Speaker to have to determine all these elements, the Speaker’s impartiality is compromised.

Another strange element of the Bill is the provision that says that before the Speaker issues his certificate, he shall consult the Deputy Speakers. That mirrors the provision in the 1911 Act whereby the Speaker, before issuing his certificate on a money Bill, has to consult two members of the Panel of Chairs. What happens if all the Deputy Speakers disagree with issuing the certificate? Why should the Speaker have to consult? One presumes that it is simply a matter of fact, although I suppose we all know that facts are rarely clearly delineated and are rather more subjective than most people would want to admit. The point is, however, that this puts the Speaker and potentially the House in peril, because people may want to contest any one of the various elements of the Speaker’s decision. One of the matters that would almost certainly arise if there were any contest as to whether the certificate was being rightly issued is what the Deputy Speakers had said. That is an unfortunate direction for us to take.

We have tabled an amendment, on which I hope to divide the Committee, on the timing of when the Speaker issues the certificate. At the moment, the Bill makes no provision whatsoever on when the Speaker’s certificate should be issued. One therefore presumes that it could be a month, two months or several months after the passage of two weeks. Let us say, for instance, that after a motion of no confidence has been carried, the Government try to reform themselves with a different concatenation of political parties and do not manage to secure a new motion of confidence, but there are still patently ongoing negotiations that are nearing their closing phase. Would it then be all right for the Speaker not to issue a certificate at that point but to wait until such time that another Government had been formed? The difficulty is that if the Speaker chose not to do so, who is to gainsay the Speaker? There is no provision in the Bill for what would happen if the Speaker has not done what the Bill requires.

For all those reasons, I believe that this element of the Bill is flawed. I also believe that certain elements should not be in statute but should be in Standing Orders in order to provide greater certainty for the House by taking them within the concept of proceedings of this House. Above all, I want to ensure that there is no uncertainty about the specific provision as to when the Speaker has to act and when the Speaker may act.

[Jesse Norman]

I wish to speak in favour of the amendment. First, may I congratulate my hon. Friend and neighbour the Minister on the very calm and effective way in which he has steered this legislation through the House?

None the less, it seems to me that a basic issue with the legislation remains unresolved. It has been described in this House as a matter of parliamentary privilege, but in fact it concerns the fundamental principle of parliamentary sovereignty. One thinks of the magisterial words of A.V. Dicey:

“The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined”—

by which he means the King or Queen in Parliament, rather than just Parliament itself—

“has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

That is the cardinal principle at issue today. It is worth saying that our parliamentary sovereignty remains intact in principle. It remains open to this House to repeal, if it so wished, the Act of Settlement 1701 by simple majority. The sovereignty of Parliament can thus be deliberately limited in its effects by this House—for example, by treaty—but it should not be limited by accident, by inadvertence or by over-confidence. There is a risk—a small risk—that this will happen under these provisions.

The Clerk of the House has advised in writing and in testimony that to include parliamentary voting procedure in statute would risk judicial scrutiny of the proceedings of this House, and possible legal challenge. It is important to note that this is not merely the view of the Clerk of the House, but also the view of Speaker’s Counsel, and it has legal authority behind it. That is simply because the functions described under the clause are statutory functions, and it would therefore be for the courts to determine whether those functions are lawfully exercised. That is, of course, advice rendered to the House, not to the Government.

--- Later in debate ---

[Mr Jenkin]

My hon. Friend is making an extremely important point about the European Court of Human Rights. As soon as something gets into the Court, it respects no immunities whatsoever—nor does the European Court of Justice, but that is not adverted to in this case. Once a case is in that system, we do not know where it will lead. The European Court of Human Rights certainly would not respect the limitations of the 1689 Act.

[Jesse Norman]

I do not wish to comment on the procedure or intention of the European Courts, but I note merely that it is true historically that their scrutiny has extended itself over time. It is noted less than it should be that European judges have expressed concern about the exercise of parliamentary privilege and about the lack of remedies that people possess against its exercise.

The final reason why the Government should look again at the amendment is that the consequences of a mistake could be momentous. In the short term, a dissolution of Parliament and thereby an election could hang on it. In the longer term, there could be wider political and constitutional implications of judicial scrutiny of our power.

The amendment is simply worded, it offers an additional layer of protection for Parliament against a serious threat, and it does so at little or no additional cost. I urge the Minister to give it serious consideration.

[Tristram Hunt]

I, too, shall speak to amendment 6, which would take us some way in the direction in which we should be heading to protect this place from the actions of the courts.

Every day, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, we see growing evidence of interference by and elements of activism in the courts. We now have the Supreme Court in Parliament square, and large buildings tend to have large consequences. The emeritus professor of public administration at University college London, Professor Gavin Drewry, has recorded a major shift towards cases of public law, with some high-profile cases having a constitutional air:

“The establishment of the Supreme Court is an important constitutional landmark, and it would be surprising if the Court itself were to stand completely aside from the ongoing process of constitutional development.”

There is a strong sense of certainty that the Supreme Court will be involved.

It is apposite to be discussing this Bill after this morning’s judgment in the case of three former Members of this House, Morley, Chaytor and Devine, and also a peer, against their claim of parliamentary privilege. In his summation, Lord Phillips noted that

“extensive inroads have been made into areas that previously fell within the exclusive cognisance of Parliament.”

His statement should be of major concern to parliamentarians when considering the Bill, and in particular to Ministers, who I hope have read and digested the judgment and are coming to sensible conclusions about it.

If I may, I shall quote Lord Phillips at greater length:

“Where a statute does not specifically address matters that are subject to privilege, it is in theory necessary as a matter of statutory interpretation to decide a number of overlapping questions. Does the statute apply within the precincts of the Palace of Westminster? If it does, does it apply in areas that were previously within the exclusive cognisance of Parliament? If so, does the statute override the privilege imposed by article 9? In practice there are not many examples of these questions being considered, either within Parliament or by the courts. If Parliament accepts that a statute applies within an area that previously fell within its exclusive cognisance, then Parliament will, in effect, have waived any claim to privilege.”

Those are damaging and dangerous comments, which have wide repercussions.

Lord Phillips argues that the ultimate judgment of such matters rests with the courts. He quotes approvingly a letter written on 4 March 2010 by the Clerk of the Parliaments to the solicitor acting for Lord Hanningfield which had been approved by the Committee for Privileges:

“Article 9 limits the application of parliamentary privilege to ‘proceedings in Parliament.’ The decision as to what constitutes a ‘proceeding in Parliament’, and therefore what is or is not admissible as evidence, is ultimately a matter for the court, not the House.”

We should consider that evidence and the actions of a growing number of judges in considering the Bill.

--- Later in debate ---

[Mr Shepherd]

I am more and more puzzled about the Bill as we go on, but there are two propositions in this group of amendments. I support amendment 6, in the name of my hon. Friend the Member for Stone (Mr Cash), and I am grateful for the important contribution of my hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman). Indeed, I was elated at the time of the election to hear that Jesse Norman had been elected to the House. I spent six months seeking out that fantastic opera singer—I got the wrong individual, as you will appreciate, Ms Primarolo, and I am very grateful to have encountered my hon. Friend on the Floor of the Committee.

[Jesse Norman]

rose—

[Chris Bryant]

He wants to sing. Sing for Britain.

[Jesse Norman]

No. Hon. Members will be pleased to hear that I do not propose to sing, but I am pleased to report that I have managed to overcome the quadruple handicaps of being tall, white, English and male.

[Mr Shepherd]

And formidable handicaps they often are.

The endeavour of my hon. Friend the Member for Stone and those who support the amendment was to provide some form of belt-and-braces approach. None of us is confident that it can work, because the aspirations and ambitions of several of our lords justices have given one an uncertainty as to where they are heading in the rewriting of the constitution. I am also mindful of the European Court of Human Rights. We have an inferior court that we call a Supreme Court and a superior court that we call a court of human rights, and on top of all that we have another court called the European Court of Justice. Somewhere in there I can see a demented Prime Minister making an application for unfair dismissal as a result of a vote to every one of those courts in turn, while we watch on, as though it were a Gilbert and Sullivan pantomime. I shall support the amendment.

Similarly, I will support amendment 23. The matter has to be determined quickly and appropriately, so I shall not waste the House’s time having indicated the actions that I will take.