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Westlake Legal Group > Posts tagged "Fixed Terms Parliament Act"

WATCH: Labour are looking at an election ‘this side of Christmas’

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Richard Ritchie: It is futile to ask where political giants of old would have stood in today’s chaos

Richard Ritchie is the author of a recent history of a secretive group of Conservative MPs called The Progress Trust (Without Hindsight: A History of the Progress Trust 1943-2005). He is Enoch Powell’s archivist and is a former Conservative Parliamentary Candidate. He was BP’s director of UK Political Affairs

Anyone who has had the privilege of a close association with a political Giant of Old must be accustomed to the question “And what would ‘X’ or ‘Y’ be saying or doing now?”

Normally, it is possible to give a reasonably objective answer, and always with the important qualification of “all things being equal”. But of course they never are “all equal”, which is why nobody knows for certain how any figure of the past would react to a contemporary event.

Some politicians, however, are more careful than others to provide future generations with material on which to speculate. For example, one might argue from Churchill’s past speeches on Europe that today he would have been either a fervent remainer or brexiteer – both sides of the debate have indeed claimed as such. It is difficult, however, to banish the suspicion that their selection of the great man’s quotes are largely driven by their own political objectives, and often with less regard to when they were actually said.

In the case of Enoch Powell, with whom I worked, I always add the qualification, when asked “what would Enoch be saying now”, that it depends on what stage of his career you are speaking. When Powell started off in politics, he was an imperialist. He wished to govern India and maintain the Empire. But being young with a political future ahead of him, he abandoned this principle when it was no longer tenable – and being Enoch, he abandoned it dramatically, logically and conclusively.

I have sometimes wondered whether he would have acted similarly over Europe, had he embarked upon a political career in the 1970s. I have always thought it possible that he would have adapted to a loss of sovereignty in the same way as he adapted to loss of Empire. Of course, nobody knows. But there is at least enough material on which to construct a case for the possibility.

There is one sense, however, in which the question “what would they be saying now?” is especially difficult to answer at the moment. That is because we can no longer rely on the conventions of the past, which in turn is mostly due to the European curse – for better or worse, membership of the EU has eaten away at Britain’s unwritten constitution. And that is why we now seem to be confronted on a daily basis with one constitutional aberration after another which, only a few years ago, would have been considered unthinkable.

In the space of a matter of weeks we have had a Government accused of breaking the law, in contempt of the courts, and in contempt of Parliament; but at the same time we have a minority Government with no control of its business in the House of Commons but denied its right to hold an election in order, as it would argue, to honour the result of a referendum.

Were they alive, the great Parliamentarians of the past – the Powells, the Foots, the Benns – would have been at the forefront of these events. But nobody can be sure of what they would be saying. Perhaps it’s helpful to consider Powell again in this context – not because he is more important than many others, but because he vividly illustrates the difficulty of making parallels with the past.

Most people would surely assume that were he alive today he and his supporters – MPs like Ronald Bell, Dick Body, Nick Ridley and possibly John Biffen – would at this juncture have supported leaving the EU with no deal, although even that is uncertain had they believed in the veracity of the Yellowhammer document’s warnings. It’s worth recalling, for example, that the reason why Powell supported Macmillan’s effort to join the Common Market in the 1960s – unlike many in his Party who were already objecting to the political implications – was that he feared that our trade with Europe would be threatened outside the group.

With the global liberalisation of trade and the developing political ambitions of the European Union, his mind changed. But given his extreme distrust and dislike of America and his championing of Ulster, one shouldn’t assume that even Powell would have been sanguine over the economic dangers of leaving “without a deal.”

But whatever his views on this, it’s hard to believe he would have challenged Parliament’s right to try and prevent it. He and his friends would have been aware of every legitimate political trick and device available to thwart the Government, and provided their perpetrators acted in accordance with precedent they would have upheld their right to do so, however much they disagreed with their purpose. After all, that was the concept of Parliamentary sovereignty which all shared at the time. However dangerous and unwise it might be, Parliament has the undoubted right to ignore the result of a referendum and repeal any Act it has passed. Retribution, if deserved, will follow at a general election.

Except that now we are denied a general election – and this is something Powell could never have conceived. I am sure he would have considered it unconstitutional for a minority Government, having lost control of the business in the House of Commons, to continue in office. It is not without precedent for an Opposition leader to refuse to take over from a Prime Minister in difficulties. But for a failing Government without a majority to be denied a general election by its opponents would have been unthinkable to Powell or any of his contemporaries.

Neither could any of them have conceived of a Speaker who only respects Erskine May when it suits him and who regularly criticises the Government, even when on holiday. Powell often criticised the Speaker of his day for failing to observe precedent or to preserve Parliamentary standards of behaviour, but always in private. However, I think with Speaker Bercow he would have moved a vote of censure against him.

Above all, neither he nor any politician of his generation could ever have imagined a measure such as the Fixed-terms Parliament Act of 2011 reaching the statute book. They would have regarded this Act as madness from the start – they would not have needed the benefit of hindsight.

That does not mean, however, they would have approved of this particular prorogation. Powell and most Tories of the past would surely have been concerned that the precedents created today would prove extremely dangerous under a socialist government. Whether they would have agreed that this was a matter properly to be considered by the courts is a different matter – of course, for Powell the Supreme Court did not exist, and the high court was Parliament itself with a proper Lord Chancellor in office.

But when it comes to how we ended up in this situation, what would Powell, Foot, Richard Crossman, or Tony Benn have said? Powell would have started off by saying, unhelpfully, “I told you so”. Conservative governments are not expected to meddle with the constitution. But that is what a Conservative Government did when it acceded to the Treaty of Rome in 1972: from henceforth it’s been downhill all the way, and now Heath’s (or should I say the Nibelung’s) curse continues to wear away the Norns’ thread of destiny. Powell would have undoubtedly believed this.

But the existence of a legislative Parliament in Scotland; a referendum result which opposed the policy of a Government on a fundamental matter of principle; a partisan Speaker; a fixed-term Parliament; the island of Ireland now divided not only between Unionist and Republican but between the competing political regimes of the EU and the UK – this means that any revered Tory politician of the past would, today, be completely out of his depth. No point in asking what Enoch, or anyone else, would have done in today’s circumstances. We just don’t know.

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Andrew Gimson’s Commons sketch: Johnson makes Corbyn look weak

The Prime Minister looked in ebullient good humour as he entered the Chamber at 10.34 p.m. to Tory cheers. He shared a joke with the Brexit Secretary, read over a few lines of his speech, leaped to his feet the moment the Speaker called him at 10.48, and set about ridiculing his opponent as “the first Leader of the Opposition to show his confidence in Her Majesty’s Government”.

What Boris Johnson said was less important than the sovereign way he said it. He conducted himself as a man who holds the initiative, because he knows what he wants, whereas the Opposition parties are reduced to the absurd contention that they are desperately impatient to hold a general election, but also to defer any contest.

So Johnson quoted Labour leaflets put out this weekend, “We need a general election now,” accused the party of “preposterous cowardice” for avoiding one, and observed: “The only possible explanation is they fear we will win it.”

At an early stage, Johnson demonstrated his boldness by moving the microphone onto the Despatch Box so the House could hear him better – the sort of thing a well-brought-up Englishman would not dream of doing, for it would seem both risky and rude.

With Johnson, it demonstrated his sense of freedom, his “why not?” approach to things, his fearlessness in the face of whichever authorities run the Commons sound system.

“I will not vote for another delay,” Johnson declared, and sounded as if he meant it.

If Jeremy Corbyn had wished to make the Conservatives laugh at himself, his speech could have been counted a success.

When he announced, “The Prime Minister is running away,” he provoked huge amusement.

Corbyn was soon reduced to accusing the PM of making “very poor quality posts on social media”. The PM chuckled. He was at ease, even though his microphone was by now back in its conventional place.

“The Prime Minister is talking up no deal to one wing of his party,” Corbyn said, and offered one of his over-long pauses.

“Chicken wing,” some Tory wag shouted – not a witty intervention, but enough to make Corbyn look a fool for giving the opportunity.

By the end of these exchanges, one could not help feeling Johnson might have done better to keep Parliament sitting continuously, though it is true that allowing more time would make the exchanges less dramatic.

Jo Swinson, the new Liberal Democrat leader, accused Johnson of treating the whole thing “like a game”, and told him sternly, “this is not a student debating society”.

A lot of people will agree with her. She was better than Corbyn, because she sounded as if she believed what she was saying. The Lib Dem vote will be swollen by Remainers who wish to vote for the genuine article rather than for a fake.

But on her point that Johnson treats the thing as a game – an accusation made by many people – it should be said that while it is true that a certain playfulness can usually be detected in his utterances, he is serious about winning any game he plays.

He won last night by 293 to 46 votes, which sounds decisive but was insufficient to meet the exacting requirements of the Fixed-term Parliaments Act.

More important, he won the debate, made Corbyn looked weak, and reminded everyone that he likes nothing better than to go out in rough weather.

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Interview. McLoughlin – Hunt’s former campaign Chairman, lifelong One Nation Tory – backs Johnson’s suspensions

Sir Patrick McLoughlin has defended the Prime Minister’s right to withdraw the whip from Tory MPs who refused last night to support the Government.

McLoughlin, who chaired Jeremy Hunt’s leadership campaign and is the only person ever to have served both as Conservative Party Chairman and as Chief Whip, said “Leadership is about making some very tough decisions” and Tory MPs cannot “just carry on ad nauseam debating this issue”.

He said with deep emotion during this interview, carried out yesterday morning so before last night’s Government defeat, that “I just don’t think we can carry on like we have been doing”.

He added that what is happening to One Nation Toryism is “terrible”, and the party must not become a Brexit party, but in order “not to become a Brexit party we have to deliver Brexit.”

McLoughlin defended David Cameron against the charge that calling the referendum was just a way to fix the problems of  the Conservative Party. He pointed out that Tony Blair and Jack Straw had previously raised the idea of a referendum, the Liberal Democrats had committed themselves to one in their 2010 manifesto, and Labour as well as the Conservatives voted for the referendum which was actually held.

ConHome: “You are the only person to have been both Chief Whip and Party Chairman?”

McLoughlin: “I think I probably am. I don’t think anybody else has been punished like that.”

ConHome: “What’s your view of the Government’s proposal to withdraw the whip from those who don’t support it today?”

McLoughlin: “I regret very much that it’s come to this. But the truth is that if the Prime Minister decides something is a matter of confidence, having just got the overwhelming endorsement from his party to lead it, then I think he has the right to do that.

“Leadership is about making some very tough decisions. I think this is a very tough decision and I wish it wasn’t necessary.

“So I don’t come to it with a sort of ‘Yes, let’s do this, bring it on.’ It’s very much a regret, and it’s very much with sorrow, because some of the people we’re talking about have been good, loyal Conservatives.

“But I just don’t think we can carry on like we have been doing. That is part of the problem.”

ConHome: “Friends of ours like Alistair Burt make the point that ‘we’ve been through the lobbies three times to support this deal, and there are all these characters who haven’t, including the Cabinet ministers who abstained on key votes and helped to bring about the deterioration in discipline.’

“They’ve got a point, haven’t they?”

McLoughlin: “Yes they have got a point. I won’t publicly go, but there are some people who I find absolutely staggering, what they’re calling for.

“But the job for the Prime Minister is not necessarily to look at individuals. And sometimes life is tough. But he is taking the position that we promised…

“All these people voted to implement Article 50. And, you know, we’ve had a six-month delay which cost us very dear. They’re now talking about another three-month delay.

“Well I’m not sure what’s going to happen in the next three months that’s not happened in the last six months.

“And I just think we’ve got to move on from this. I’m sorry we’re leaving the European Union. I still remain sorry we’re leaving the European Union.

“But we gave the people a chance in the referendum. And I just would like to say one other thing as well.

“Everybody says the reason David Cameron did this was to try to a) thwart Farage and b) to reunite the Conservative Party.

“It is just worth remembering that in 2010 the Liberal Democrats had an In/Out referendum in their manifesto, and when we actually moved to the referendum the referendum was supported by the Labour Party as well as by the Conservative Party.

“It was never just in my view a ‘try and fix the Tory Party’ scenario.”

ConHome: “When the whip’s removed, the tradition is you remove it on a vote of confidence, and without trying to peer too far into the future, if the Government loses, do you expect the PM to go immediately for a general election if he can, or wait for Second Reading, or wait for the Lords to get its teeth into the Bill, or what?”

McLoughlin: “Well ‘I don’t know’ is the answer to that.”

ConHome: “I’m just trying to establish if it’s really a vote of confidence or not, even if the Fixed-term Parliaments Act…”

McLoughlin: “Well I think the Prime Minister can say I regard this as a vote of confidence in my leadership, and that’s what he’s doing.

“It is not in the technical sense of the word a motion of confidence, as required by the Fixed-term Parliaments Act.

“But it is a motion of confidence, because the Prime Minister says ‘I regard this as a motion of confidence’.”

ConHome: “I mean presumably without encouraging you to speak up for the deselection of endless numbers of Conservative MPs, what’s good for the goose is good for the gander here.

“And if he comes back with a deal, and it’s opposed by some Conservative MPs, he would be entitled to remove the whip from them, would he not?”

McLoughlin: “One step at a time. We’re dealing with today at the moment, and tomorrow will be a different day. The logic of that, which is what your article basically says today, is that would be the case.

“I think one’s got to be always cautious about using these things, and I’m sure that a lot of thought has gone into it, and I hope they’ve considered all the consequences.

“Because as I say I very much regret it has come to this. But I also don’t think we can just carry on ad nauseam debating this issue, which we seem to have done, some people say for the last three years, actually it’s been more like the last four years, following the 2015 election when the referendum was first promised.”

ConHome: “If a very senior member of the party is reselected by their association, as the former Chancellor was last night, but they vote against the Government today, they could be finding that reselection vote is in vain, could they not?”

McLoughlin: “That’s my understanding, but I know Philip Hammond seems to have a different view.”

ConHome: “Is there going to be a general election this year, and if so, when?”

McLoughlin: “I think it’s looking very likely there will be a general election, and I only know from what everybody is saying, October 14th, a Monday, which would enable the Prime Minister, whoever he is, to go to the [European] Council that weekend.”

ConHome: “Though that’s not been said on the record.”

McLoughlin: “The only thing I know about this election, unlike the last election, is what I’m reading in the newspapers.”

ConHome: “Just as a former Chief Whip who’s used to watching the Opposition the whole time, what do you think the Labour Party’s going to do if it comes to a general election vote?

“Because part of the point of having an election before October 31st, if there is one, is Labour can’t say ‘We’re not voting for this, because if we do there’ll be a no deal Brexit’. That excuse has been removed from them, so they’re going to have to vote for this.”

McLoughlin: “I would have thought so. I don’t understand this new nuance that somehow we should wait until after 31st October.

“Because if there was an election on 14th October, then that allows for the Prime Minister, whoever he is, to go to the European Council on the 17th.”

ConHome: “And if the election comes before Brexit, presumably the Brexit Party will stand as many candidates as they can, arguing you can’t trust the Tories.”

McLoughlin: “Well look, all that we can do, if the Brexit Party stand in every seat, which they may well do, they may take some votes.

“But it’s a bit like at the last general election, when everybody thought the UKIP vote would come to the Conservatives. It didn’t wholeheartedly come to the Conservatives, it was quite mixed, and in some areas it did, you know the Mansfields and the places like that.

“I remember talking to you after that election, pointing out we’d won some seats that we haven’t won for 70 years.

“So look, this next election will not be like the 2017 election and it won’t be like the 2015 election. No elections are. They’re all individual entities, fought very much as things are then.

“And this will be a very quick election. The 2017 election was too long.”

ConHome: “How comfortable do you feel about where the party is now?

“If there’s an election, going in on a manifesto that’s pro-Brexit, possibly, actually, with a reasonably good relationship with the Brexit Party, Leave voters might find this prospectus attractive, but there would be tremendous problems with former Remain voters, London, the south.

“You’ve been a One Nation Tory all your working life, and you’re seeing that bit of the Tory coalition in peril.”

McLoughlin: “It’s terrible. It is not a nice scenario. I’m not doing any of this with glee.

“But I also think that governments have to govern, and you know, that’s what we said in the referendum, what we would do, and I don’t think we can rejudge that.

“I famously used that line at the Cabinet meeting, which David Cameron’s used since, saying I’ve always wanted to live in Utopia – the only trouble is I’d wake up and find the European Union was still there.

“But I also respect the right of the Prime Minister to say, ‘We’ve fought an election, that election was on leaving on the 31st October, I’m determined to deliver that.’”

ConHome: “How do you think he’s doing? As Jeremy Hunt’s former campaign chairman.”

McLoughlin: “I think he’s doing very well. He’s trying not only to address the Brexit issue, but he’s also trying to address the other issues that needed addressing anyway.

“Such as education funding and also what he’s saying about the Health Service and other issues.

“So I think what you see in Boris is someone who does actually want to move on to the other agendas as well, and perhaps he feels we’re being sucked into one issue and one issue alone.

“I said a few months ago the Conservative Party must not become a Brexit party. I definitely believe that. But for us not to become a Brexit party we have to deliver Brexit.”

ConHome: “That suggests you think under the previous regime all collective discipline by the end had completely broken down.”

McLoughlin: “I wouldn’t say all discipline. I almost think, looking at this now in hindsight, and with the benefit of hindsight, I almost think we had to go through that to get where we are.

“And don’t forget, Theresa May became Prime Minister because everybody else faded away. That’s how she became Prime Minister. And I think she carried out the job with incredible dignity, and I will never criticise Theresa, because I think she was trying to do an incredibly difficult job.”

ConHome: “How is she now? I saw you talking to her yesterday.”

McLoughlin: “I saw her briefly yesterday. She seemed fine. I think when you consider for nine years she’d either been Home Secretary or Prime Minister, with all the constraints that has on life, I look at Philip and I look at Theresa and I think they are people who are of the Conservative Party, were the Conservative Party, and I have nothing but respect and admiration for her.”

ConHome: “You’ve already touched on David Cameron’s decision to hold the referendum. It was in fact disastrous, would you say?”

McLoughlin: “No, because I think again, that is something we probably needed to do… Blair was the first person to start talking about referendums, Blair and Straw.

“So this isn’t something that DC woke up one morning and thought, ‘This’ll sort everything out.’ It rarely does.”

ConHome: “You are going to stand again, aren’t you?”

McLoughlin: “I very much hope to stand again.”

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There’s no majority in this Commons for anything. This Conservative contest is faltering because candidates won’t face that fact.

Let’s start with what we know.  The Withdrawal Agreement has been defeated in the Commons three times.  The opposition parties have whipped to vote against it.  A core of roughly 30 Tory MPs seem opposed to it at any cost. And opposition MPs won’t defy their whips to vote for it, at least in numbers that make any difference.

These are the facts against which the plans of the candidates in the Conservative leadership election must be judged.  Over the weekend, Matt Hancock and Sajid Javid both put forward Brexit plans with detailed alternatives to the backstop.  Both seek to amend it and make alternative arrangements.  The main strength of Hancock’s is that it recognises that changing the Political Declaration is very much easier than changing the backstop.  The biggest plus of Javid’s is that it understands that Ireland is a net loser from any form of Brexit, and proposes compensation. We have long made this case.

Neither, however, can be guaranteed to pass through Parliament.  Arguably, neither is likely to do so, even in the unlikely event that the EU and the Irish Government are prepared to amend the backstop provisions in the Withdrawal Agreement.  A pincer movement from Labour’s front bench and the Conservative Spartans would band together against both plans.  The former have an incentive to bring down a new Tory Prime Minister right at the start – and the latter are unlikely to fold.

Are we picking unfairly on Hancock and Javid?  Not so: we start with them only because they have set out the most detailed plans so far based on the Withdrawal Agreement.  Boris Johnson and Dominic Raab’s positions are similar in principle: both seek to amend the deal on offer.  If either they or others want to drop the backstop altogether, that would offer a plus and a minus.  The plus is that such a proposal, in the form of the Brady amendment, is the only plan to have passed the Commons to date.  The minus is that the Irish Government and the EU will be even more hostile to it.

Nor are those candidates who propose returning to the Commons with some form of Theresa May’s deal the only ones whose plans are unlikely to succeed.  At one end of the spectrum, Esther McVey wants to go for No Deal.  But this anti-No Deal Commons, supervised by its biased Speaker, will search for ways of stopping it from happening – as it has to date.  At the other, Sam Gyimah wants a second referendum.  However, there is no majority in the Commons for the Bill that a second poll would require.

Andrea Leadsom wants a managed form of No Deal.  The EU would be unlikely to co-operate, at least initially.  And by the time it had got round to going so, her government would be gone – sunk by a no confidence vote.  The same applies elsewhere.  Philip Hammond and company would help bring down McVey; the Spartans and friends would do the same to Gyimah (and that’s assuming that any of these minor candidates could get elected in the first place).  Rory Stewart is passionately for May’s deal.  But passion is no substitute for numbers.

Almost alone, Jeremy Hunt seems to understand the paradox: no Brexit first, no election victory afterwards.  No election victory first, no Brexit afterwards.  And he can no more unriddle it than can anyone else.

Hunt, Hancock, Javid, Johnson, Raab, McVey, Gyimah, Leadsom, Stewart – all would face the same likely course of events as Britain’s new Prime Minister, namely the defeat of their plans in the Commons, followed shortly by a no confidence vote, or at least the threat of one, and a general election.  They might be able to postpone the day of agony by plumping for an extension.  Such appears to be Michael Gove’s position.  None the less, that day would still come sooner or later.

So we come to the crunch.  All signposts point towards a general election.  But none of the candidates dare say so – because they are dependent, in the first stage of the contest, on the votes of Conservative MPs.  Some of them know that a poll would end their service in Parliament.  Others fear that it would cast the Party into opposition even were they returned (which is reasonable enough).  The overwhelming likelihood of an election is the truth that dare not speak its name.  The Fixed Terms Parliament Act might delay one but, as we saw in 2017, it is a barrier that MPs can ultimately vault.

There is a strange unreality to this leadership contest.  The greater the electoral danger to the Tory Party, both from the Brexit Party and elsewhere, the more fringe candidates seem to emerge.  None of them have risen to the scale of the challenge to date, and the reason isn’t hard to find – namely, that all concerned are unwilling to admit that an election is likely, and set out how on earth they would win it with Brexit undelivered.

Theresa May didn’t fail simply because she couldn’t sell her policy.  She did so because there is no majority in this Commons for it.  There seems to be no majority in it for anything.  Until the candidates face up to that fact, they are chasing at shadows.

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