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We are at a curious juncture in the Bill and, indeed, in our constitutional history. The background to the amendment is the tension, since time immemorial, between this House's ability to function immune from judicial interference, and the courts, which periodically have sought to limit the extent to which we can continue our business unimpeded by the courts. That was, of course settled-to a degree-in the Bill of Rights in 1789-
In recent years, however, the tension between the courts and the independence of this House has been thrown into relief. I remind the Committee of cases such as the one brought by Lord Rees-Mogg for judicial review of the ratification of the Maastricht treaty after this House had passed an Act of Parliament.
Jacob Rees-Mogg: I would like to clarify that the judicial review case brought by my noble kinsman was not in any way to challenge what had happened in this House. It was to challenge the use by Ministers of the royal prerogative, which is why the judicial review was allowed by the courts.
Mr Jenkin: I stand corrected-again. I fear that that may occur rather often during my presentation. The case relating to the Hunting Act 2004 was certainly an attempt to impede the free functioning of Parliament in its judicial function. In addition, an attempt was made to judicially review the lack of a referendum on what was then the Lisbon treaty. There are other examples of that tension, not least over the arrest of my hon. Friend the Member for Ashford (Damian Green), and I believe that only today, in connection with another matter, are the limits of the courts being resolved.
The present situation begs for something that many have recommended for some time: that this Parliament should have a privilege Act to delineate clearly the immunities of Parliament in relation to the functioning of the courts, but we are in an even more tense situation because we are arranging our constitution in other areas that question the very sovereignty of the House. We now have a Supreme Court and it is widely known that many jurists who serve at various levels of the judiciary take differing views of the notions of parliamentary sovereignty and parliamentary privilege. There was recently a case concerning the possible effective expulsion of an hon. Member as a result of a judicial decision. I do not comment on its merits as it is still sub judice. I merely advert to the fact that it represents another testing of the boundaries between the courts and Parliament.
We are told not to worry-the Bill's provisions are immune from the courts, and nobody is going to interfere in what we decide is a Speaker's certificate, certificating a vote of no confidence that satisfies the majority. When we are blandly and bluntly told that by the Government and at the same time told by the Clerk of the House who has bravely and independently-in his constitutional capacity as an independent guardian of our constitutional arrangements-issued a memorandum, to which I shall refer later, that flatly contradicts the Government's view, we are obliged to take the matter very seriously.
I cannot think of a precedent, other than the Parliamentary Standards Bill, where a Government flatly refused to accept the advice of the Clerk of the House on a question of the potential justiciability of legislation before the House. The Bill before us is a major change to the constitutional settlement of this country, and it is backed by people in the Government who we know favour a written constitution-an entirely different constitutional settlement. That raises the question whether the Government have got it right when they say that the Clerk's fears are to be disregarded.
With the indulgence of the Committee, I shall quote rather extensively from the memorandum submitted by the Clerk as written evidence to the Political and Constitutional Reform Committee. He states that the Bill is
"to make statutory provision for matters which fall within Parliament's exclusive cognizance and which may affect the established privileges of the House of Commons as well as upsetting the essential comity which has been established over a long period between Parliament and the Courts."
"to be the sole judge of their own proceedings, and to settle-or depart from-their own codes of procedure."
"The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker's certificates."
"The provisions of this subsection make the Speaker's consideration of confidence motions and the House's practices justiciable questions for determination by the ordinary courts."
That should be obvious. We know that Crown prerogative, as exercised by the Prime Minister, is subject to judicial review. We know that statute is subject to judicial review. We know that proceedings in the House and Standing Orders have not hitherto been subject to judicial review or judicial question. The Bill provides a connection between what happens in the House and in the rest of the world. We are providing a bridge of law that brings the courts into the House.
Tristram Hunt (Stoke-on-Trent Central) (Lab): Does the hon. Gentleman think, therefore, that the amendment goes far enough? The solution, as the Clerk of the House sees it, is for the Speaker's certificate to be provided for not in statute but under a Standing Order, which would prevent the courts from interfering in the proceedings of the House.
Mr Jenkin: The hon. Gentleman makes an extremely important point, to which I shall return. The entire Bill could be dealt with through Standing Orders. The only reason we have a Bill is either that a Bill is favoured by those who want to move towards a written constitution-I do not remember that being in anybody's manifesto-
Mr Jenkin: There we are. Perhaps that is why the Opposition support the Bill. We have just had a Division in which 400 right hon. and hon. Members were in the No Lobby and only a handful of us in the Aye Lobby. That underlines the curious consensus in favour of certain principles of the Bill. I do not think either of the elected parties in the coalition was in favour of a written constitution- [Interruption.] That is two parties, but the one that won the election certainly did not-
Mr Jenkin: I do not remember that being a great issue in the general election, but we are, in effect, creating one of the standard features of a written constitution, thereby tempting the courts to start interfering in the internal workings of the House.
Mr Harper: For the avoidance of doubt, the Government's position is that they are not in favour of moving to what is more accurately said to be a codified constitution. Many of our constitutional principles are, of course, written down, just not in one document. It is not the Government's position to do so. I hope that cheers my hon. Friend up.
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.
"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.
"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."
"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.
"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.
Mark Durkan: Is the hon. Gentleman satisfied that either the Bill or amendment 6 would protect against judicial intervention on the ground of failure to issue a certificate-a controversy that could easily arise, particularly in the light of provisions in respect of a motion of no confidence? The certificate issues only after the 14-day period has been allowed-it does not issue at the time of the debate or just after the vote, but later on-and there could be controversy about the failure to issue a certificate or about whether a certificate could be issued. Someone might try to bring that to the court.
Mr Jenkin: The hon. Gentleman is absolutely right. The amendment, as drafted by my hon. Friend the Member for Stone, deals with only one aspect of the matter, and, given our limited time to scrutinise this enormously important Bill, I explicitly invite the other place to look carefully at all the aspects and the advice of the Clerk. One of its own Committees is considering the matter and might well come up with different conclusions from those of the Commons Political and Constitutional Reform Committee. The Lords sorted out the IPSA Bill, under which they kept our proceedings immune from the courts, and I very much hope that they will do the same with this Bill.
My concluding point is a general one about the Bill but is relevant to the amendment. I do not think that I can recall a major constitutional measure that was so closely associated with the survival of one Administration. We have to pinch ourselves when we think of what we are doing in reality: we are completely changing our constitutional settlement at the behest of a coalition, so that it can remain in power for five years. I do not even think that that is ethical. Parliament's immunity is basically being screwed up, and, although a Bill can at least be repealed, once the courts have been allowed into our proceedings, we will never get them out again without a major break in the constitution such as in 1689.
All that can be forestalled if the Minister simply says, "These matters cannot be resolved today," because they cannot be resolved on the basis of parliamentary counsel's advice to Ministers about the drafting of Bills. We need the other place to give the highest and most independent legal advice to ensure that we do not inadvertently bring about what the Government themselves do not want to see.
Many thanks are due to the hon. Member for Harwich and North Essex (Mr Jenkin), who has done us a great favour by pointing out some of the
problems in this small aspect of the legislation. He is absolutely right to say that large parts of the Bill exist only for the preservation of a single Administration. I do not know the appropriate Latin equivalent of ad hominem legislation, but this is "ad administrationem" legislation, which is why some provisions will not stand the test of time. The best that we can do is try to ensure that the elements of real peril are tidied up.
The hon. Gentleman was right in several regards, but not in one. He talked about the IPSA Bill having been miraculously improved in the other place, but none of us really thinks that we ended up with a perfect situation or that nirvana arrived by virtue of that Bill. However, on the Bill before us-I suspect this would also apply to the other constitutional Bill that we recently scrutinised-he is right that if there were a free vote, none of the legislation would go through at all.
On the IPSA Bill, at one stage there was a proposal to allow IPSA to adjudicate on and punish Members for breaching the rules. That would have driven a coach and horses through our traditional immunities under the Bill of Rights, but it was removed in the other place.
Chris Bryant: Indeed. As the hon. Gentleman said earlier, a privileges Act will be needed at some point, and I hope that the Government turn to such legislation. I realise that there are problems with any written or "codified"-to use the Minister's term-constitution, because one risks making it justiciable and must then decide what will be the justice that oversees it. Will it be a supreme court or a constitutional court, such as many other countries have? That is a debate for another day, however.
The issue of the Speaker's certificate can be addressed only in relation to how it is operated in motions of no confidence, so I do not intend to stray far, Mrs Primarolo, from the specific issues involved. Nevertheless, in the previous debate the Minister said that all the amendments dealt with wildly hypothetical situations. Those were not his precise words, but broadly speaking that is what he meant, and he was right in a sense. When one starts writing bits of the constitution into statute, however, one has to provide for the hypothetical situation that suddenly arises when, for example, voters have cast their votes not so conveniently as to provide for a single majority party in government, or when a party-as has happened regularly over the past 200 years-has collapsed into two parties and is not able to sustain itself in power.
It is important that we consider the unlikely outcomes that might transpire, because if they were to transpire they would provide us with an enormous constitutional headache, and we would have literally no means of sorting them out, because we would have no other court to appeal to in order to sort out the constitutional row. For instance, if the monarch decided to sack the Prime Minister-this point was raised earlier-other than revolution I know of no other means that we would have to enforce what we all understand to be the proper constitutional settlement.
I presume that the Government have drawn up the provision on the Speaker's certificate as they have done in an attempt to mirror provisions in the Parliament Act 1911, as amended of course in 1949. In an attempt to ensure that in accordance with the Bill of Rights the courts did not interfere in parliamentary proceedings, that legislation tried to provide a cast-iron process whereby the Speaker could certificate that certain Bills were money Bills and did not, therefore, have to go through the same process in the House of Lords as other Bills. It also provided that if a money Bill were amended or not passed by their Lordships within a certain period-I think it is a month-it would be automatically be sent to Her Majesty for Royal Assent.
"the Speaker shall consult, if practicable, two members to be appointed from the Chairmen's Panel at the beginning of each Session by the Committee of Selection."
There is a difficulty, however, with transposing that provision directly into provisions for a situation in which the Government have lost a motion of no confidence, or into measures that provide the Speaker with a series of fairly significant powers. The Speaker will get to decide when to issue that certificate. As the hon. Member for Harwich and North Essex has already said, that means that the Speaker will decide whether nodding people through when Members are on the parliamentary estate and a Whip, by agreement between the Whips from both sides, nods them through at the end of a vote by saying, "And two more," is allowed.
The Speaker will decide also, for instance, whether 14 days have passed since the no confidence motion has been carried. That is important, because past debates on a motion of no confidence might have started at 3.30 in the afternoon, but they certainly did not finish by midnight; sometimes, they took up the whole of the next day's business. In parliamentary terms, Members were still on the first day, so the question whether 14 days had transpired would be a moot point.
Further, the Speaker will decide what is a motion of no confidence. I therefore presume that, similarly, he will decide what is a motion of confidence. The hon. Gentleman is absolutely right that many of those issues could be dealt with in Standing Orders. That would be very helpful to the House on the question of what counts as a motion of no confidence or of confidence, in particular, because this is a matter not of partisan advantage or ideological divide, but of trying to ensure that there are practical measures to obviate a constitutional disaster should the moment arise.
It would be helpful if the Minister were able to tell us whether he is minded to suggest to the Deputy Leader of the House that there should be motions to change the Standing Orders of this House to make some of the conventions that currently exist part of Standing Orders. For instance, there is the question whether we should have in Standing Orders the provision that when the Opposition demand a motion of no confidence it should usually be provided, say, within 24 or 48 hours, or provision concerning how the Speaker goes about the certification process.
Mr Shepherd: I am a little puzzled as to why the hon. Gentleman comes to the conclusion that this needs to be codified in any way. Our history demonstrates quite openly that this House comes to such a resolution by the processes of the House. When Mr Chamberlain won the famous Norway debate, he recognised that there was no confidence in him personally. These matters are eventually decided by the House and by the judgment of individuals. Surely that is the better way of doing it.
Chris Bryant: In a sense, that is an argument against the whole Bill which I understand. I know that the hon. Gentleman is not saying that this is a conspiracy, but I think that the hon. Member for Harwich and North Essex feels that a bit of a cosy consensus has developed around the fact that there should be a codification of fixed-term Parliaments. We agree with that codification. However, once one starts to codify one element, one has to codify rather a lot of them. That is why I have wanted to codify what counts as a motion of no confidence and what should be a motion of confidence. Perhaps we should have tried to codify it in a slightly different way so that, for instance, a motion to amend the Loyal Address could also be considered as such, as in 1924.
Mr Jenkin: What the hon. Gentleman is suggesting might well be sensible in one respect, but I fear that it will not prevent the courts from having a go at this. Indeed, if what constitutes a motion of confidence is codified in our Standing Orders, the courts will then be interpreting whether our Standing Orders reflect what could be regarded as such. If he wants clarity and is seeking to provide a better definition, this has to be put into the legislation. Of course, that reflects the point that we are tempting the courts to interfere in the proceedings of this House.
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"-
"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.
This issue was rightly taken up by the Political and Constitutional Reform Committee in its report on the Bill. In response, the Government relied on expert witnesses to show that the Bill would avoid unwarranted legal challenge. As has been discussed, the Clerk recommended a way past the problem, which was that the procedure should be written into Standing Orders, but that was rejected by the Government. In my judgment, it is perfectly legitimate for the Government, after due consideration and on legal advice, to insist on their preferred approach of including the relevant procedures in the legislation, rather than in Standing Orders. Nevertheless, we are discussing a separate issue-related, but separate.
I believe that the Government would be well advised to accept the amendment for three reasons. First, as with all legal issues, this issue is not absolutely clear; it does not admit of certainty. The Government have relied on expert advice, but when Dawn Oliver and Anthony Bradley gave testimony to the Political and Constitutional Reform Committee, both experts acknowledged the small but clear risk of judicial challenge. They stated that precedent and statute are being relied on that may themselves require new legislative support. As has been noted today, that risk would be magnified by the heat and time pressure of an election.
I would like to correct something that I said earlier to the Committee with reference to Harold Lever, by quoting from the evidence of the Clerk of the House before the Political and Constitutional Reform Committee:
"I won't bore the Committee with too many precedents, but I couldn't resist this one. This is from 1974 and it's to do with the passage of the Trade Union and Labour Relations Bill. I will read a very short extract from the Journal of that year. 'Mr Harold Lever, Member for Manchester Central, acquainted the House, That in the Divisions on Amendments...to the Trade Union and Labour Relations Bill...he was recorded as having voted with the Noes, but he had to inform the House that he was not within the Precincts of the House at the time of those Divisions and that in consequence his vote ought not to have been so recorded.'"
"In this case, when Mr Lever came to the House and acquainted the House about his absence, the whole procedure was declared null and void, including the Third Reading of the Bill. The Bill had to be called back from the House of Lords and the whole process had to happen again."
"I don't think I need labour the point of what this would mean in terms of a no confidence vote."
Secondly, I think that the Government should accept the amendment because there is a clear trend of more public decisions falling under the scrutiny of the courts. I do not think that that is currently happening in domestic law, and in my view fears over judicial activism are misplaced. Nevertheless, we now have an independent Supreme Court that might not always exercise the restraint and care that has been shown by the present generation of judges in acknowledging and preserving the principle of parliamentary sovereignty.
The European Courts are taking a greater interest in domestic matters. The European Court of Human Rights has heard at least one case that the British courts would not consider on the grounds that it fell under parliamentary jurisdiction. European judges have expressed concern over the lack of remedies against the exercise of parliamentary privilege.
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.
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."
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.
"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."
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."
Mr Jenkin: Bluntly, what the hon. Gentleman is averting to is a power struggle. The question is whether the House will stand up for its immunities or give them up. The Bill is an indication that we want to give them up.
Tristram Hunt: I agree with the hon. Gentleman and with the fundamental basis of his analysis, which is that the constitutional reform programme is driven by the immediate necessities of the Government in the context of this Parliament. We are making major decisions that will have wide ramifications in the functioning of the constitution of the United Kingdom, based on a political programme and timetable. That is never the best way in which to develop deep consensus thinking about the constitution.
"given that a draft Parliamentary Privileges Bill has now been announced, why deal in advance and separately with a matter affecting the proceedings of the House of Commons in legislation",
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: 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.
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.
Mark Durkan: Like the hon. Member for Aldridge-Brownhills (Mr Shepherd), I shall speak in support of amendments 6 and 23, which are both attempts to earth the Bill against some of the dangerous shocks that could be created for the House in the future. To make some of my points, I will have to refer to what the Minister said about the previous group of amendments.
In the debate on the previous group, the Minister said that he could think of no circumstances in which a debate on a motion of no confidence would take place without the House knowing that it was a motion of no confidence, even though the Bill requires the Speaker to issue a certificate only after a period of 14 days has elapsed-it does not specify how long after. That creates a situation that we all have to consider before we even go into the danger of what will happen when the matter goes to the courts. Let us first look at the difficulties and controversies that will be created in this House.
If a motion of no confidence can be played like a wild joker, and any motion can be converted into one, then whenever there is a controversial issue or one involving Opposition or rebel tactics, the Speaker will be asked early in a debate, "Will you signal whether you would be
minded to say that this debate is certifiable? Will you declare that we are going through a potentially certifiable chain of political and constitutional events?" Of course, the Speaker might wish to say, "You are trying to draw me into a matter of controversy", because he might not be privy to what Whips are saying to Members about the significance of a particular motion.
What would happen if the Speaker said that a motion was not certifiable, and the Prime Minister subsequently decided that the nature, colour and content of the debate meant that it had been a motion of no confidence in him rather than in the Government, as in the example of the 1940 debate mentioned by the hon. Member for Aldridge-Brownhills? Somebody could announce from the Dispatch Box, on either the Opposition or Government side of the House, that as far as they were concerned, there had been a motion of no confidence. Would that mean that the Speaker's ruling was somehow removed or overturned? If anybody wanted to contest in court either the issuing of a certificate or the failure to issue one, that sequence of events involving the Speaker and Front Benchers could become relevant. It could become a matter of contest and controversy being presented in court.
Even short of the matter getting to the courts, we are already potentially compromising the Speaker. He will constantly be hostage to inquiries as to whether a particular motion could be treated as a motion of no confidence, and his ruling could at any time be upstaged from the Treasury Bench.
Mr Charles Walker (Broxbourne) (Con): My children once asked me, "What does a heffalump look like?" I said, "You'll know one when you see one." Has that not been the case with confidence motions throughout history? The House has known one when it has seen one, and we are in danger of over-complicating the process in the Bill.
Mark Durkan: I have a lot of sympathy with what the hon. Gentleman says, and that was why I indicated my support for earlier amendments that would have narrowed the ambiguity and reduced the possibility of political and procedural chicanery, with which the Bill is riddled.
To return to the matter at hand, let us be clear that the Bill's provisions are open to all sorts of contests, questions and controversies. As I have said, I believe that the Minister was wrong to say that the House will know in all circumstances when something is a vote of confidence. If he wanted to make that incontrovertibly so, he would need to provide either in Standing Orders or in the Bill for a formal indication by the Speaker that a certificate could be issued prior to the period set out
in the Bill, which starts 14 days after a motion. That, in turn, would bring the Speaker into areas of political controversy and intervention. Amendment 6 is clearly aimed at ensuring that those difficulties do not make the issuing of a certificate, or possibly the failure to issue one, a matter of controversy that can be brought to the courts.
In discussing previous amendments, Members alluded to affairs currently in Oireachtas Éireann and in the Dail. Those affairs may be relevant this week, because an opposition party there has indicated that it might take to the courts the question whether, under the constitution, the agreement that the Irish Government have entered into has to be subject to a vote of the Dail. Let us not rule out circumstances in which a party here, possibly a party of Opposition, could feel that the Speaker had wrongly declined to issue a certificate, or that the Government were using all sorts of procedural chicanery to prevent certificates being issued and to reset the clock. That party might then feel obliged to take the matter to court if it felt that it faced dead ends and chicanery in Parliament. That is exactly the situation that was threatened in Dublin this week given what the Irish Labour party justice spokesman said. Let us not join the Minister in completely dismissing all such possibilities.
I do not want to move from Dublin to Northern Ireland affairs, but I have some experience of what happens in practice. I was involved in negotiating and implementing the Good Friday agreement, including as a Minister and Deputy First Minister. Ministers told this House that procedures would follow their own course and that political matters would not end up in the courts, but then I found that my election as Deputy First Minister was taken to court-when I was jointly elected with David Trimble-because all sorts of rules were bent and twisted and the clock was reset by Secretaries of State and others.
The Northern Ireland Act 1998 set a clear six-week period, but Secretaries of State discovered that if they suspended things for 24 hours, there would be a new six-week period. Whenever there is a facility to contrive a completely new situation and dispose of a statutory deadline, it is used-whenever Ministers are told that in case of emergency they can smash the glass, they do so. Completely contrary to the assurances and explanations given to the House when we debated the 1998 Act, a number of Secretaries of State found themselves doing that. In addition, Assembly Members redesignated to pass particular votes, even though they said that they would not, and so on.
In the context of the Bill, people have said that a Government would never put themselves in the embarrassing position of activating a vote of no confidence in themselves or cutting corners, ignoring rules or resetting clocks so that they can bypass dates and deadlines, but the Northern Ireland experience shows that that is not so. The exigencies of the moment, and the demands for stability and good governance, can be used as circumstantial excuses. Let us not pretend otherwise. If we are trying to provide for fixed-term Parliaments with clear, fixed and guaranteed arrangements, we must go further than the Bill does. It leaves too much power in the hands of the Prime Minister and the Executive when there has been a motion of no confidence, and in respect of their influence over the decision of whether a motion is one of no confidence or otherwise.
I therefore ask the Minister to acknowledge that there are shortcomings in the Bill. Some of the amendments have their own shortcomings, but they do not diminish the serious problems with the Bill. If he will not accept amendments 6 and 23, will he agree to work in another place and in the House at another time to make his own amendments, so that the Bill does not create those difficulties and controversies?
Under the Bill, the Speaker could be the subject of controversy. What if there are differences between the Speaker and Deputy Speakers on the question whether to indicate in advance that a motion is certifiable? More importantly, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, I believe that such matters could find themselves before a court, not only because somebody might want to contest the fact or content of a certificate, but more importantly because people might want to contest the failure to issue a certificate or the fairly questionable proceedings in advance of it. We do not want the Speaker of the House of Commons to be caught in the same position as Scottish football referees. They have been accused of taking and changing decisions in relation to subsequent arguments and events. Let us protect the office of the Speaker and this House.
Mr Robert Buckland (South Swindon) (Con): I rise to make a brief contribution. I have listened with great interest to the debate and I await with even greater interest the Minister's response to the very well advocated position on amendment 6, with which I have great sympathy.
"and shall not be questioned in any court of law"?
The amendment proposes the use of the word "whatsoever", which was no doubt an attempt by my hon. Friend the. Member for Stone (Mr Cash) to deal with the European question-that is perfectly legitimate and I understand entirely the reason for his wording-but the point is the same: if such a provision was good in 1911, why is it not good now? If anything, the balance between Parliament and the courts has deteriorated, as the hon. Member for Stoke-on-Trent Central (Tristram Hunt) eloquently outlined. The balance is now extremely fine, and it is in danger of being overturned in favour of judicial activism.
It may well be that reliance will be placed upon the residual powers of article 9 of the Bill of Rights, but as an Act of Parliament, that too is subject to judicial interpretation. Over the years, it has been interpreted in a variety of ways by the courts. Notably, it has been impliedly waived or restricted by this House. Section 13 of the Defamation Act 1996 is a good example of Parliament deciding, in effect, to allow its privilege to be qualified. I have strong views on the wisdom of that legislation-it was foolish and has led to unintended consequences, which are at the heart of this debate.
No Member of Parliament wants a diminution of its authority or power. This is an elected Chamber and we represent the people of this country. Sovereignty means just that. It is right that all hon. Members worry-even if it is sounds like lawyers' caution-about any further unintended diminution of our authority. That is why I
support amendment 6. Why not change clause 2(3) to put things as far beyond doubt as possible, mirroring what legislators did in 1911, to ensure that the spectre of the judiciary questioning and second-guessing the proceedings of the House does not become a reality?
Mr Cox: I had not intended to speak, and I shall be extremely brief. Most of my remarks will be addressed to the Minister in the hope that he can provide the clarification in substance to the questions asked by my hon. Friends and Opposition Members, which I should like to reinforce.
My first question is precisely that which my hon. Friend the Member for South Swindon (Mr Buckland) just asked. Why not add the proposed words? If clause 2(3) is intended to be an instruction to the courts that a certificate shall not be challenged, on the face of it there could be no real reason, unless the Minister has thought of something that others have not thought of or been advised otherwise, why the injunction of my hon. Friend the Member for Stone (Mr Cash), which is more expressive, explicit and detailed, should not be added. Will the Minister elucidate the purpose of stopping short at the word "purposes" and not going on to be as explicit as possible?
I ask that because historically, ouster clauses in administrative law have not been conspicuously successful. The courts have not paid very much attention to interpreting their duty to examine such issues, and often even where the ouster clause has been passed. [ Interruption. ] I see from the sedentary reaction of my hon. Friend the Member for Somerton and Frome (Mr Heath)-the Deputy Leader of the House-that the reason may be that such provisions are so pointless that there is no point in going any further. If that is the reason, it would be helpful if the Government made that clear, so that Members could consider that. I have to tell him that I do not consider the provision to be pointless-I would not imagine that the Government would do anything that was pointless in drafting the legislation.
Mr Cox: I see my hon. Friend nodding sagely. That provision therefore must have a function. If that function can be increased in its effect and efficacy by adding the proposed words, why not incorporate them?
That brings me to my second point. If it is necessary under clause 3(3) to try to instruct the courts that the certificate should not be justiciable-that it should not be considered-that must imply, as does my hon. Friend's reaction from the Front Bench, that the Government are aware that the courts may well, even in remote and possibly extreme circumstances, become ensnared in the examination of these issues. One can see considerable skill and intelligence at work in the drafting of the Bill. One sees that it is intended not to be tempting to the courts. If we codify too much in statute, the danger is that the courts would be drawn into examining whether the preconditions for a motion of confidence had been met, whether the definitions were properly complied with and so on. What the legislation seems to be doing-if
this is the intention, it is a laudable one-is enacting, in broad outline, so as to make it clear to the courts, that the critical questions of definition and discretion are still for the House and the proper authorities of the House. It is a statute that is intended to preserve a certain flexibility and suppleness so that the courts are not drawn into examining such issues, whereas they would be if we laid down too precise a definition of the concepts that they involve.
I appreciate that, and I see the point of it. It no doubt forms part of the Government's confidence that the courts will not ordinarily enter into that territory. However, the mere presence of that ouster clause suggests that the Government are aware that in some circumstances they might. As the Government have indicated-albeit via a sedentary reaction-they are plainly aware that ouster clauses do not always work. That suggests to me that the Government are content-or at least have made a strategic decision-that in certain circumstances the judicial authorities may come to interpret and consider this legislation. I accept that that is highly unlikely in the ordinary case, given the amount of discretion, the amount of territory left to the Speaker and the ill-defined nature of many of the concepts. It would be a bold court indeed that entered into a discussion of such issues and allowed them to become the subject of a judicial review.
Mr Jenkin: We all know that we are talking about heated and potentially controversial circumstances. If there was a raging controversy about alleged malpractice in our proceedings or surrounding them, and if public opinion was strongly supportive of one view or the other, there would be intense pressure on a court to intervene. Does my hon. and learned Friend not think it would be difficult for a court not to intervene under such circumstances?
Mr Cox: No, I do not think that. Intense pressure is precisely what an independent judiciary is set up to resist. One would expect and hope for that from a senior judge. We are fortunate in the judiciary we have in this country. I hope that hon. Members will reflect carefully on some of the language that we have used in this debate today. It is not the case that the judiciary have an appetite to assume the powers of this House. Indeed, in my experience the preponderance in the judiciary is to be careful and scrupulous in the way they observe the parameters of judicial power.
The problem is-if I can extend this parenthesis as briefly as I may-that we have invited the judiciary into the territory time after time, since the European Communities Act 1972, which fundamentally altered the constitutional arrangements in this country. It essentially meant that there was a higher constitutional court, namely the European Court of Justice-we already have it-which presupposes and believes it is capable of trumping domestic law. That ultimately led to a decision in a case called Factortame, in which an Act of Parliament was set aside by the House of Lords, on the basis of the seniority-or superiority-of the European Union's law. Then we had the Human Rights Act 1998, which preserves-or attempts to preserve-a careful balance. Nevertheless, it invites the courts into consideration of the policies and legislative objectives-almost on the basis of their merits-that this House has always considered
to be its prerogative and to fall within its exclusive sphere. The courts are careful, but they themselves acknowledge that the Human Rights Act has invited them further into that territory.
Chris Bryant: The hon. and learned Gentleman is making an important contribution, and he is right about the reluctance of the courts, for the most part, to intervene and tread on our toes, as it were. However, the truth is that those elements of parliamentary privilege that attach because of not wishing to interfere with proceedings in Parliament get very fuzzy at the edges. Indeed, there are areas where others want the courts to express a view. My anxiety is not that there would be a challenge when the Speaker had issued a certificate, but that a challenge would be far more likely when the Speaker had decided not to do so.
Mr Cox: I have heard that observation made, and I hope that the Minister will be able to address it. I do not feel quite as concerned as hon. Members who have expressed their views on that point, and I will say why. A court would very soon see through an argument that went: "The Speaker has not issued a certificate in circumstances where we"-the party bringing the application to the court-"think he should have done." The reason is that if a certificate is conclusive for all purposes, so must the absence of a certificate be. I do not believe for a moment that a court would see the matter any other way when the Speaker had chosen not to make a certificate. Otherwise, we would have to have a provision in the Bill saying that if the Speaker chooses not to certify, that should not be challenged either. It must be implied that if a Speaker made a deliberate and conscious choice not to certify, the absence of the certificate-that choice-must equally be conclusive, and I think that most courts would see it that way. One could argue that that should be explicit in the Bill, but for my purposes, I would not have thought a court would find impressive an argument that said that a Speaker who decided not to certify could be judicially reviewed, whereas if he had certified-let us say, in the negative-he could not be. That would be pointless.
Mr George Howarth (Knowsley) (Lab): The issuing or non-issuing of a certificate is a slightly false comparison. The issuing of a certificate would result in action-providing that it was not challenged successfully in a court-whereas the non-issuing of a certificate would, I presume, simply preserve the status quo.
What is the point of a certificate? It is not going to be challenged in a court, because the Government and this House will instruct the courts not to look at it. The point of the certificate is merely to express in writing the Speaker's view that something had been a motion of confidence. If he does not issue a certificate, it is plainly the case that he has reached the view that it is not a motion of confidence. However, it is highly unlikely that the mere fact that a Speaker had produced that view but not committed it to a piece of paper would induce the courts to enter that territory and issue what used to be called a writ of mandamus-it is now called a mandatory order-to force him to do so. I find that improbable and implausible. I hope that the Minister will draw some comfort from that, but he should not draw complete comfort from it, because the mere fact
that we are considering whether the courts would or would not be able to enter this territory will induce litigants, lobby groups and political groups to bring these very applications before the courts to test out the territory. It will not be long before the courts start to consider the extent to which the Bill allows them in, and the extent to which it does not. That is where the hon. Gentleman of whose constituency I am shamefully ignorant-
Mr Cox: The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted the recent judgment of Lord Phillips, and that is important because Lord Phillips made it plain that the courts will reserve the power to define the parameters of parliamentary prerogative and privilege. If the Bill remains enacted in the law of this country for a long period, which I rather doubt, there will inevitably be a point at which the courts are invited in and at which they will start to examine the extent to which they can and cannot become involved. Their view might not entirely coincide with that of the Government. For example, the question of whether a certificate is valid might arise. The Bill states:
"A certificate under this section is conclusive for all purposes."
I am asking the Minister to consider this matter, and I am asking from the heart. I have noticed that, from time to time, he has found many of the interventions by Members not altogether to his taste. Perhaps the smile of the Cheshire cat is always seated on his face during these debates simply because of his serene command of his brief and his sublime confidence in the merits of this legislation. However, I ask him to address the consciences of many of the Members on his own side who have deep and sincere concerns. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) is among them, and when he rises to speak on matters of the constitution, he must always be listened to with respect. He may not be a lawyer but, by Jove, his instincts on the constitution are proud and honoured by a long tradition in this House. I pay tribute to him for standing up with such integrity and for such a long time for the traditional view of the constitution in this House. It is not a bad thing to stand up for tradition. It is not wrong to honour the way in which our forefathers constructed the constitution, the wisdom of it and the value that it has conveyed down the ages to the inhabitants of this country.
Will the Minister address this matter? I hope that I have expressed myself modestly by saying that I do not endorse or adopt many of the more exaggerated flights of fantasy that have occasionally been bandied about the Floor of the House. However, it surely cannot be denied that there is some risk and some legitimate cause for concern, when this matter seems to prey on the minds and the consciences of so many Members of this House who are motivated by entirely sincere reasons, rather than merely by the need to hear the sound of their own voice. I ask the Minister to address those concerns with the sincerity with which they have been expressed.
When Mr Hoyle was in the Chair last week, he made it clear that he did not intend to have a stand part debate on this clause as we will have touched on all parts of it when debating the amendments. Before I move on to considering the amendments, it is worth putting into context the parts of the clause about which Members are concerned.
I think I am right in saying that the concerns expressed about privilege and about whether the courts should intervene have almost exclusively related to clause 2(2), which deals with motions of confidence. Interestingly, the Clerk of the House, in his evidence and in conversations with me, was not concerned about subsection (2), given that it uses a perfectly well-precedented certification procedure. His concern-I think I explain it accurately-was with subsection (1), which covers the certification of an early general election, rather than with the certification procedure in principle. His concern was with the nature of the procedure that had to take place before the Speaker certified. In other words, not only would the House have had to pass a motion on a Division, but a particular number of Members would have had to vote.
Members expressed concern about motions of no confidence and the extent to which courts would want to interfere in them, but the Clerk of the House was exclusively concerned about clause 2(1), which deals with the House voting on a motion for an early general election, because of the two-thirds majority.
Mr Jenkin: At the risk of repeating what I have already read out from the Speaker's memorandum, I want to ensure that we are not speaking at cross-purposes. In paragraph 16 of the Committee's report, the Clerk makes it very clear, in discussing clause 2(2), that
"The provisions of this subsection make the Speaker's consideration of confidence motions and the House's practices justiciable questions for determination by the ordinary courts."
Mr Harper: I had a conversation with the Clerk about the certification, with the majority being specified. The Government decided to place the provisions on the early general election in statute rather than relying on Standing Orders because, as I stated in the memorandum I placed in the Library on 13 September, we cannot achieve the policy objective by relying on Standing Orders, which can be changed by a simple majority-
I beg to suggest that, if the Minister had listened carefully to what I said earlier, he would have heard me reading from a letter I had received from
Mr Robert Rogers, who made it absolutely clear that it is possible to entrench a Standing Order of this House with its own super-majority. I am astonished that the Government do not understand that, and that the whole basis of this Bill seems to rest once more on the denial of advice given by the Clerks of the House.
Mr Harper: My hon. Friend cited in the letter from Robert Rogers a reference to existing Standing Orders, which require a particular majority for an event to take place. I think he mentioned the requirement for 100 Members to vote for a closure motion. There is no precedent for a Standing Order, passed by a simple majority, to entrench itself and require that it cannot be changed, other than by a vote of this House on a different majority. The Government know of no precedent for that, and no Member has given an example of one. If a Standing Order provided that an early general election could be held only after a vote with the specified majority, and if that Standing Order could be changed by a simple majority vote in the House, it would be open to the governing party, at the behest of the Prime Minister, to change the Standing Order and to trigger an early election based on the whim of the Executive. That is exactly what we are trying to remove under the Bill. The Government believe that if the policy objective is to be achieved, the procedure must be specified in statute.
Mr Harper: I think we have touched on that before. Once the Bill becomes an Act of Parliament, it cannot be changed purely by a majority vote in the House of Commons. The decision would have to be made by Parliament, which would also engage the other place, in which the Government do not have a majority. Even after- [Interruption.] I anticipated that reaction. Even after the appointment of the new list of working peers, the governing parties together will have only 40% of the peers in the upper House; 60% will be Labour peers, Cross Benchers or Lords Spiritual. The fact that this will be an Act of Parliament makes it impossible for a majority vote of a governing party to bring about an early general election, which is our policy objective.
Chris Bryant: The Minister is right in saying that the main difference is that the matter would have to be dealt with in the second Chamber. As I understand it, however, the coalition agreement states clearly that the Government's aspiration is to create enough peers to meet the proportions formed by each of the parties in the general election. That would provide a majority of 56%-quite apart from the fact that, as far as I can see, virtually every remaining Liberal Democrat Member in the country will be a member of the Second Chamber.
Mr Harper: I will not dwell on this issue at length, Mr Evans, because if I did so you would rule me out of order, but the coalition agreement does not say that. It says that we want to make the upper House more representative of the result in the general election, not exactly in line with it. The hon. Gentleman simply is not right.
The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted from a judgment. I will not be drawn into the specifics of the Chaytor case-although the Supreme
Court has given its judgment, there are ongoing criminal trials-but the flaw in the hon. Gentleman's argument lies in the fact that the case concerns the administration of the expenses scheme. The House of Commons has never asserted exclusive cognisance of the expenses scheme. It has never said that the scheme, its administration and the matters that flow from it are parliamentary proceedings, which is why that is not a good example. Moreover, the Supreme Court's judgment recognises the exclusive right of each House of Parliament to manage its own affairs without interference from the other, or from outside Parliament.
My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) quoted the views of the Clerk of the House. If the Government were alone in their view and the Clerk's views were shared by everyone else, my hon. Friend would have a stronger case. The Political and Constitutional Reform Committee and the Lords Constitution Committee have taken a great deal of evidence, and the weight of independent expert evidence has supported the Government's view. For example, Professor Robert Blackburn of King's college London said-and I think that this is in line with the comments of my hon. and learned Friend the Member for Torridge and West Devon-
"In my view, the government's Fixed-Term Parliaments Bill has been technically well-drafted by the Cabinet Office's parliamentary counsel, particularly in avoiding judicial review of its provisions on early elections by way of Speaker's certificates".
"In the very limited time that we had to look at this matter, the Clerk was the only person to raise this question, and the academics who have been referred to-Professor Hazell, Professor Blackburn and others-completely disagreed with the view put forward by the Clerk."-[ Official Report, 13 September 2010; Vol. 515, c. 632-3.]
Tristram Hunt: The point was that we did not have enough time to hear other voices that might have agreed with the Clerk of the House, owing to our having to rush our consideration of the Bill and to the speed with which the Government are pushing it through.
Mr Harper: That was also the experience of the Lords Constitution Committee-and, in fact, we have not been rushing the consideration of this Bill. We published it in July, Second Reading was in September, and this is the third day of the Committee stage, in December. We are hardly rushing forward at an enormously swift pace. Months have elapsed. I feel sure that if hundreds of constitutional lawyers and academics agreed with the Clerk and disagreed with the Government, we would have heard from them.
Mr Andrew Turner (Isle of Wight) (Con): Does my hon. Friend understand that the Committee had to rush through its work on this Bill and the Parliamentary Voting System and Constituencies Bill at the same time?
I am prepared to accept that consideration of the Parliamentary Voting System and Constituencies Bill has been proceeding faster than consideration of this Bill, but I cannot accept that this Bill is being considered at a great pace. It was published five months ago, we have reached only the third day of the Committee stage, and the Report stage is still to come. I believe that
we have been proceeding at a sensible pace. Indeed, today's proceedings were added when the Government realised that Members wished to engage in the debate at greater length.
Chris Bryant: The Minister seems to suggest that all the evidence apart from that of the Clerk of the House falls into the other camp. The Committee listened to the various witnesses and reached a rather different conclusion-that the purpose of the Bill needed to be achieved without the courts being invited to question aspects of the House's own procedures or the actions of the Speaker-and urged us to move in a rather different direction from the one advocated by the Government.
Mr Harper: The Committee was quite right. I agree that we need to ensure that the courts do not question those matters. In a moment I will deal with the amendments and the Government's reason for believing that the language we have used about the well-precedented use of Speaker's certificates prevents the courts from questioning the Act.
My hon. Friend the Member for Harwich and North Essex observed that judges were not more interventionist. I believe there is evidence that there has been more judicial activism in judicial reviews of Executive decisions, but as far as I am aware there is no evidence that the courts have become more interventionist in challenging parliamentary proceedings. Executive decisions and decisions of Parliament are quite different from each other. Although the Supreme Court has a new name, it has no greater powers than the judicial Committee of the House of Lords that it replaced. I do not think that my hon. Friend's concerns are well judged.
My hon. Friend also referred to the European Court of Justice and the European Court of Human Rights. The European Court of Justice can deal with matters related to European Union law; nothing in the Bill would engage it. Similarly, the functions of the Speaker under the Bill do not engage any of the rights conferred by the European Court of Human Rights. I think it was only last week that the Joint Committee on Human Rights agreed with that when it said that the Bill's provisions did not need to be brought to the attention of either House on human rights grounds.
My hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman)-who is not in the Chamber, as he has had to fulfil a long-standing and important engagement to attend a meeting elsewhere in the House-expressed concern about the European Court of Human Rights. In fact, it has shown the utmost respect for parliamentary privilege. In a 2003 case, A. v. United Kingdom, it was specifically held that article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. The European Court of Human Rights strongly supported the contention that courts would not become involved in these matters.
I agree with my hon. and learned Friend the Member for Torridge and West Devon, who said that owing to the very nature of these events-the fact that they would be politically highly charged-judges would not be keen to rush in and engage in questions that are
rightly to be resolved by political rather than legal means. I have heard no evidence, apart from assertion, that courts would do anything different.
Mark Durkan: I gave the example from 2001 when, on the third attempt, David Trimble and I were jointly elected as First and Deputy First Minister by the Northern Ireland Assembly. That was taken to the courts. Yes, the courts did not touch on issues connected with the Assembly's standing orders, but they did entertain the suggestion that the Secretary of State had failed to use the power and duty, given to him under law, to set a date for an election if no First and Deputy First Minister have been elected after six weeks. The Secretary of State did not do so, claiming that because he had notice of the potential to elect us, which had been issued by the end day of the six-week period, he could interpret the deadline differently. The court did not throw out the case and the judges-competent, serious, senior judges-divided on the issue. In the light of that precedent, the assurance of the hon. and learned Member for Torridge and West Devon (Mr Cox) does not stand.
Mr Harper: The hon. Gentleman makes my point for me. He accurately sets out the fact that at issue was not a proceeding in Parliament-a decision of this House-but an executive decision by the Secretary of State. As I have said, there is lots of evidence that courts will challenge Ministers' decisions, and one can argue about whether they will be right to do so; Ministers would probably argue they are not, but everyone else would probably argue that they are. The case the hon. Gentleman raises involved an executive decision; it was not a decision of this House or a proceeding in Parliament, and it is not protected under article 9.
Mark Durkan: But what we are talking about is related to the closest equivalent in the Northern Ireland Act 1998 of the certificate powers being given to the Secretary of State. Sections 31 and 32 of the 1998 Act provide for the early Dissolution of the Assembly and early elections. They are the exact same powers, except that in Northern Ireland the Secretary of State has the powers of an "over-Speaker", rather than their being vested in the Presiding Officer. They are the equivalent powers, however.
Chris Bryant: Sorry, but the Minister is using the phrase "proceedings in Parliament" as though it were a self-evidently clear concept, but a great deal of legislation and case law has analysed various different aspects of it and it is nowhere near as clear as he might presume.
No, and that leads to where I was going, which was to turn to amendment 6 and to explain why we are using the language of the device of a Speaker's
certificate. There are precedents that have stood the test of time, which is why Professor Blackburn expressed the feeling in the quotation I read that parliamentary counsel had drafted the Bill well.
My hon. Friend the Member for Stone (Mr Cash) tabled amendment 6 and my hon. Friend the Member for Harwich and North Essex spoke to it. I can see why they would want to use the wording in the Parliament Act 1911, but the Bill says the Speaker's certificate is "conclusive for all purposes" and the Government do not think inserting the words
"shall not be...questioned in any court of law"
adds anything. The 1911 wording has, indeed, stood the test of time, but it used the language of the early 20th century. Later legislation used different wording. The House of Lords Act 1999 used exactly the wording we have used, which provides that certificates of the Clerk of the Parliaments on questions of whether an hereditary peer is one of the excepted 92 hereditary peers are conclusive. The provisions have worked well in practice, whereas wording consistent with the Parliament Act 1911 could bring into question whether protections in more recent Acts were meant to be an inferior sort of protection. We think that would be undesirable.
Provided certificates are conclusive for all purposes, it is perfectly adequate to show that it is for the Speaker to decide whether the conditions for an early election have been satisfied, not for the courts or the Executive. The effect and the intention of the drafting are perfectly clear. Although the additional words in amendment 6 might appear attractive, they would not add anything to the protection in the Bill. There is no evidence or reason to think the courts would want to trespass on what would effectively be highly politicised issues or that they would not continue to regard matters relating to the internal operation of the House as "proceedings in Parliament".
I should also like to deal with the wording in amendment 6 that seeks to prevent a Speaker's certificate issued under clause 2 from being "presented" to a court. I can see why my hon. Friend the Member for Stone is trying to do that, but it seems to me that that takes a step backwards. Being able to present the certificate to the court is the simplest and easiest way of informing the court that the conditions for an early election exist and the Speaker has made the decision. That stops the court being tempted to dwell on proceedings in Parliament; it has a clear piece of paper that explains that the Speaker has made that determination and the court need go no further.
Mr Cox: Let us suppose that the Speaker issued a certificate that omitted one of the matters that the statute required him to certify. Would it not be open to a petitioner to argue in court that there had been a failure to comply with the conditions that made a certificate valid and that the court was entitled to examine whether it was a certificate before obeying the ouster that prevents it from challenging the certificate?
My hon. and learned Friend makes a point that relates to the use of certificates, but what he describes would be perfectly true of the certificate that the Speaker issues on money Bills and the certification that he issues under the Parliament Act. Those are well precedented and have stood the test of time. The courts
have been content to hold that the fact that the certificate has been issued by the Speaker is indeed conclusive for all purposes and they have not sought to challenge it.
Mr Cox: We are dealing with a fundamentally different sphere here. Whether or not a Bill is a money Bill is the kind of decision that is suitable only for a legislative Assembly, but on this matter the courts would regard themselves as guarding the right to an election, which is a fundamental right of the population of this country. If Parliament had prescribed that an election should take place and a certificate was defective because it did not stipulate one of the requisite terms, the courts may regard that as an area into which they ought to go to safeguard the right to an election.
Mr Harper: If a certificate was issued by the Speaker, we would be having an election, not stopping one taking place. I do not think that my hon. and learned Friend's concern that the courts would hold that the population were being deprived of an election would apply. The language used in the Bill was chosen for exactly the reasons I have suggested. We have used well-precedented, tried and tested language; it has stood the test of time. It is perfectly true to say that people can make groundless applications to courts on all sorts of things, but courts quickly dismiss them and prevent them from proceeding further. We are confident that these proposals are robust and will not have the effect that hon. Members suggest.
In the few minutes remaining, I wish to discuss amendment 23, because the hon. Member for Rhondda (Chris Bryant) suggested that he wanted to ask you, Mr Evans, whether he could press it to a Division. The amendment proposes a 24-hour time limit for the issuing of the Speaker's certificate. I can superficially see why that might be attractive, but it sets some conditions that might introduce elements casting doubt on the validity of the certificate if it were delayed, even if it were by only a few minutes, or if it were issued close to the time limit. Thus, the amendment would enable people to question the certificate. We should therefore rely on the standard practice, whereby the Speaker's certificate is the conclusive provision.
I regret that I feel compelled to press this matter to a vote, but I feel that the Minister's response has been wholly unconvincing. We are faced with adamant and clear advice from the Clerk of the House that the Minister has chosen to dismiss as irrelevant. Let me remind the Committee what the Clerk said:
"The provisions of this subsection make the Speaker's consideration of confidence motions and the House's practices justiciable questions for determination by the ordinary courts."
"what constitutes a confidence motion, the selection of amendments to such Motions and the consequences of their being carried".
"As these would become justiciable questions, the courts could be drawn into matters of acute political controversy."
Moreover, the Minister has rested his justification for the Bill on the assertion that it would not be possible to write these provisions into the Standing Orders, which would be automatically immune. Let me read from the Clerk's memorandum again. He said that
"a Standing Order regulating the matters in the Bill could provide for its staying in effect unless repealed by a specified majority",
"for example by...equal to or greater than two thirds of the number of seats in the House. Not only is the principle of specifying majorities already written into the Standing Orders of the House, but in the past the House has also required a relative majority for reaching decision."
My hon. Friend the Minister also dismissed the comments that I read from Mr Robert Rogers, the Clerk Assistant and Director General, who made it clear that we can not only write into our Standing Orders provisions requiring super-majorities, but entrench a- [ Interruption. ] I am rather distressed that the Minister is not even listening to what I am saying. We can entrench a Standing Order with its own super-majority so that it could be removed only by a super-majority, if that is what the House chose to do. The whole basis of the Government's advice remains contested by the Clerks. The basis of the Bill-that this has to be done through statute-also remains contested by the Clerks.
I doubt that we will win the vote in the Committee this afternoon, but the Minister has failed to give a full response or to acknowledge any of the points that have been made. His subsection refers to a Speaker's "certificate under this section", which is very unspecific. At least the amendment states
"Any certificate of the Speaker of the House of Commons given under this section shall be conclusive for all purposes".
That word "any" and the reference to the Speaker make it clear that whatever the Speaker issues is uncontested, rather than leave it open to the courts to determine whether the certificate presented by the Speaker complies with the legislation. I am afraid that the Minister has not satisfied me and I do not think that he has satisfied a great many of my colleagues on the Government Benches or in the official Opposition. I want to press the amendment to a vote.
Tessa Munt (Wells) (LD): On a point of order, Mr Evans. At lunchtime today I was sitting in the Terrace cafeteria and, for the second time in a fortnight, I was unable to hear the Division bells at all. There was nothing to indicate that a vote was taking place. Can you facilitate Members' ability to vote if they are sitting in that area, perhaps by asking the Badge Messengers to inform them that a vote is taking place while the problem is sorted out?
The First Deputy Chairman of Ways and Means (Mr Nigel Evans):
Thank you for that point of order. I must say that I have taken a number of points of order in a similar vein since taking the Chair on 8 June, and this is clearly worrying for Members as well as irritating for the Chair. I will instruct that the matter be fully investigated, not just in the area that the hon. Lady has spoken about, but throughout the parliamentary estate. Clearly,
it could affect the outcome of a vote. In the short term, I ask that, every time there is a Division today, a messenger goes particularly to that part of the House to ensure that Members are made aware that a Division is taking place.
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