Examination of Witness (Questions 1-57)
DR MALCOLM
JACK
7 SEPTEMBER 2010
Q1 Chair: Malcolm, welcome. I am
sure that everyone—if they do not know you by name—knows
you as a figure who flits around the corridor doing good deeds
and spreading magic dust on the proceedings of the House of Commons.
You are very welcome. Thank you for the paper you have prepared
for us.
I am not clear from your evidence whether you
think we have a separation of powers in this country or a unitary
system where the Government control Parliament. That seems fundamental
to some of the things that you are proposing in your document.
Where do you stand on that issue?
Dr Jack: First of all, Chairman,
I thank you very much for your welcome. I am very happy to be
before the Committee in its early days. I am sure that you will
do important scrutiny work for the House—and, indeed, already
have done.
I think that is a broad and difficult question.
We have partial separation. I have always thought the term [odq]separation
of powers[cdq] is rather misleading. As you know, when Montesquieu
used that term in the 18th century, he was thinking of something
probably quite inaccurate in our context. What we do have is a
separation of the activities of the Houses—of both Houses
of Parliament—and the judiciary, and that is the core of
the separation that I am talking about in the paper.
Q2 Chair: Do you believe that, where
Government may abuse their power, there is no role at all for
the judiciary as a separate institution to blow the whistle, if
Parliament is the creature of Government and is unable to do so
itself?
Dr Jack: There could be such circumstances
if we had a written constitution, which, I think, is what you
are hinting at. I think it is a matter for Parliament to sort
out its affairs with Government, without the interference of the
judiciary. I don't think judges should be involved in political
decisions taken in the House.
Q3 Chair: On the general principle
of five years or four years, many of the witnesses whose evidence
we have read indicate that, although we have a five-year term
at the moment—there have been two recent examples—it
is quite rare to go the full length. If we had four-year Parliaments
with provisions to have early general elections, which you seem
to be favouring, wouldn't you actually have not four-year Parliaments
but often three or possibly two and a half year or even shorter
Parliaments? Aren't there, therefore, some strong political consequences,
in terms of a Government being able to implement their programme,
things that require a length of time not coming to fruition and
the media playing an ever larger role in a permanent campaigning
environment for Members of Parliament? Isn't it a highly political
question that you're delving into?
Dr Jack: Yes, I think it is. It
gives me the opportunity to say to the Committee that I am not
challenging the principle of fixed-term Parliaments. As Clerk
of the House, it would be quite wrong for me to do that. The main
purpose of the Bill is to achieve fixed-term Parliaments. What
I am saying really is that the method by which it does so—particularly
in clause 2, which I am sure we shall come to—in a sense
invades the privileges of the House.
In answer to your question, I think you are
absolutely right. Whatever fixed-term we have, the natural processes
will tend to make things come before that time. I think I am right
in saying that there are one or two Parliaments, or countries
or other constitutions, where there is a fixed-term Parliament
and also a minimum term within the fixed-term before Parliament
can be dissolved. I think the South Africans have that in their
constitution. That could be one mechanism. But I reiterate that
I am not arguing either for or against fixed-term Parliaments
as such.
Q4 Chair: If I can press you further
on that, I think you are arguing for both. You are happy to accept
that the Government have a right to put forward a proposal for
a fixed-term Parliament if they wish, but you are inserting a
large number of caveats that actually mean that nothing changes
in the system. A Prime Minister could promote a vote of no confidence
and a number of other issues, and call an election when he liked,
whereas the Prime Minister—to his great credit—has
for the first time given away a prerogative power. If we are to
have lots of caveats about when that is suspended, we are not
going to advance very much at all. We're having our cake and eating
it, aren't we?
Dr Jack: Yes, I think it will
depend on how that is done. Perhaps as we discuss the matter further,
what you are saying could be achieved through the Standing Orders
of the House. These matters could still be kept within the House
and restricted in the way that you're suggesting.
Q5 Tristram Hunt: Just to pursue
that issue, could you lay out the concerns that you have about
the threat to exclusive cognisance from the Bill, and particularly
the threat, as you see it, of opening up the House to judicial
review or to legal challenges?
Dr Jack: Yes. First of all, may
I say that the term [odq]exclusive cognisance[cdq] doesn't roll
off the tongue easily? It is pretty archaic. I think Members will
have noticed that in my memorandum I have tried to use the term
[odq]jurisdiction[cdq], which is a little clearer, rather than
[odq]cognisance[cdq]. We are talking about the exclusive right
to settle the way both Houses do their business—to put it
crudely. By the way, this is about both Houses, although we are
concentrating on the Commons in these matters.
There are very experienced Chairs on the Committee
who have chaired various Committees of the House, and they know
that it is the duty of the Chair to enforce the rules of the House
as laid down in the Standing Orders. Of course, in the House itself
that is entrusted to the Speaker and his Deputies. They maintain
those rules of order. We are really talking about the way that
the House controls its internal affairs. The most obvious modern
example is the Standing Orders, because the House has now codified
the way it deals with its procedures and practices in the Standing
Orders. They are not exclusive of course; there is still precedent
and practice.
The Standing Orders are the way the House does
its business and entrusts, as I said, the Speaker or the Chair
of Committees, whoever it is, to interpret them without interference
from anyone; no one is able to question the Speaker's rulings
outside this place. My belief is that clause 2 of the Bill enables
some questioning of those decisions in the courts. It may be that
we'll come on to that in greater detail. I hope that the Committee
will see that is why I say I am not disputing the policy objectives
of the Bill—I have tried to put forward a way in which I
think this can be done within the jurisdiction of the House.
Q6 Tristram Hunt: And your particular
concern is the move from what happened to how it happens—the
process by which a Parliament is dissolved?
Dr Jack: Yes, that's right, or
the two processes in clause 2.
Q7 Tristram Hunt: There's a real
concern—you point to the German example—about this
being challenged in the court, an election being stalled and consequences
from that.
Dr Jack: Yes, that's right; it's
that sort of thing. If I can just pluck out one example—no
doubt we will come to others in due course—I have one or
two little precedents that might interest the Committee. In the
matter, for example, of section 2(3), it says that [odq]A certificate
under this section is conclusive for all purposes[cdq]—that
is, the Speaker certifies that one of these two routes has been
used. I'm sure that legal members of the Committee will immediately
realise that those words are challengeable if the procedures have
not been complied with under section 2, so that the piece of paper
the Speaker might sign might be regarded as invalid—not
a certificate under section 2 of the Act. It is that sort of question
that could arise in the courts.
Q8 Mr Chope: These are very fundamental
issues. I remember many years ago when I first served on the Procedure
Committee, Enoch Powell said that in the absence of a written
constitution, the procedures of the House are effectively the
constitution of our country. Having regard to that, can you tell
us to what extent you have had consultation with the Government
about the contents of the Bill, which it seems to many of us is
being rushed through? It hasn't been the subject of widespread
consultation. Obviously, you, as the Clerk of the House, presented
this memorandum to us, which seems to raise quite significant
issues. I wonder whether these are issues that you've had the
chance to deal with with Government Ministers informally beforehand,
and whether they basically rejected your line of argument or whether
these are things that don't seem to have been thought about until
now.
Dr Jack: I think the short answer,
Mr Chope, is that my responsibility is to the House, not to the
Government. The Clerk of the House and all the staff here serve
the House and not the Government. As I said, it is entirely up
to the Government what proposals they bring to the House. It is
my duty to advise the House on privilege aspects, as I see it,
of those matters. There is some informal consultation, but I don't
necessarily think that it is the duty of Government to consult
me before introducing legislation of this sort. I think it is
a matter for them to consult the House. Whether the House should
deal with a Bill like this without having a draft Bill and so
on is of course a matter that has been brought up by previous
witnesses of yours, and has been discussed publicly.
Q9 Mr Chope: Can I press you on that?
You say that it's not the duty of the Government to consult. I
wasn't suggesting it was. I was just asking whether the Government
had consulted you, because you are part of the House and there
is no formal machinery established whereby the Government can
consult the House, particularly since the Leader of the House
is a member of the Government. I wonder whether you could be a
little bit more forthcoming.
Dr Jack: Well, the answer is yes.
There was informal consultation.
Q10 Stephen Williams: I would like
to ask the Clerk some questions about the practicalities about
the issue of certificates triggering early Dissolutions. As I
understand it, there needs to be a 66% or two-thirds majority
of the theoretical full membership of the House, which is 650.
How will that be interpreted? Does the Bill allow for flexibility
when we have a situation where four Members from Northern Ireland
choose not to sit here? There may also be vacant seats through
death or people being incapacitated in some other way. How can
you reach the threshold needed? Is there going to be any sort
of variability? Do you think there should be variability, because
at the moment, you would need 433 MPs to vote in favour?
Dr Jack: Yes, I'm glad our arithmetic
agrees. I did a quick calculation and reached that figure as well.
I think the Bill talks about the number of seats in the House,
including vacant seats, so there is a fixed number. However, I
think your question raises a whole lot of problems of a practical
nature. I will just pluck out one of them, which is very fresh
because apparently there was a little difficulty last night about
a Division in the House—whether certain Members were counted
or not. I will pause there—I won't say any more about that.
The Bill talks about a motion passed on a Division. There are
experienced Members around the Committee table, and they will
know that irregularities do occur in Divisions. In fact Erskine
May has five pages on irregularities in Divisions. They range
from mistakes in counting, to Tellers leaving the Lobbies before
all Members have gone through—I believe this may have been
the case last night. I can see from their expressions that Members
have had this experience. There are also minor things, like the
ringing of Division bells, and the locking of doors before Members
have been able to get into the voting Lobbies. Then there are
conventions of the House, which would pose other problems. Members
are perfectly legitimately able to vote in both Lobbies—that
is a practice of the House—in order to cancel out their
votes. There is the whole business about nodding through sick
Members who are on the precincts. Some of this may sound a bit
dramatic, but I think we have to remember that at Dissolution
a confidence motion could be a very dramatic occasion. The Government
may be in a very tight political situation.
I mentioned that I thought that precedent would
be of interest: I have brought one. 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. [odq]Mr Harold Lever, Member
for Manchester Central, acquainted the House, That in the Divisions
on Amendments Nos.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.[cdq]
You might think, [odq]Well, so what?[cdq] But
there was a [odq]so what[cdq] because the decision on those amendments
had been made on casting votes by the Speaker[1].
There had been an equality of votes, and those amendments had
been rejected by the Speaker on the principle that, as far as
legislation is concerned, he should leave the Bill as it is, as
it is decided by a majority. 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.
Q11 Stephen Williams: Have you had
to advise either the Speaker or the Deputy Prime Minister that
the Standing Orders of the House may need to be changed—for
instance, in terms of the timing of a Division? It always strikes
me as odd that you have eight minutes precisely to get inside
the voting Lobby, but you can take as long as you like to vote.
I just wonder whether it's actually physically possible to get
433 Members through the doors of the Division Lobby within eight
minutes, because quite often you're trying to get into the Lobby—people
just don't get out of the way—and I just wonder what would
happen if the doors were slammed and people were actually queuing
to get in. It's a bit like not being allowed to vote at 10 o'clock.
Dr Jack: There have been disputes
about the locking of the doors in the past, but I am sure that
Committee members are much more experienced than I am in rushing
at those doors. There are problems in large Divisions. But I think
what I'm actually trying to say is that these problems are resolvable
within the House, by the authority of the House, by the authority
of the Speaker. If there are these problems, they are soluble.
These sorts of problem would become justiciable under clause 2
of the Bill. Someone could argue that the vote of no confidence
had not been passed according to the circumstances of the precedent
that I have given you.
Q12 Chair: Dr Jack, forgive
me for saying this, but it seems all your focus is on a premature
Dissolution. Don't you see any advantages for someone in your
position to promote the power of Parliament, given that there
could be a five-year term? Have you looked, for example, at whether
there could—on a five-year term—be much better scrutiny
of legislation? There is a whole raft of issues—opportunities,
for example, to look at other parts of prerogative powers, which
in this instance the Prime Minister is seeking to give away. It
seems that you are looking at how this would work if in effect
the system carried on. Nominally we have a fixed-term Parliament,
but let's just examine the nuts and bolts around a premature Dissolution.
Have you a view of what opportunities exist for Parliament if
there were to be a serious five-year term, which would enable
Parliament to do a large number of other things?
Dr Jack: As I said, Chairman,
I don't have a view as Clerk of the House. I shouldn't, really,
because this is a matter for the House to determine, and the Bill
is before the House; but yes, I can certainly see advantages in
a fixed-term Parliament, if that is what you are asking me.
Q13 Chair: Would you consider doing
some work in the Clerks Department to prepare for that eventuality?
Dr Jack: Of course, Chairman.
If you ask us that, we will certainly do it. Of course.
Q14 Chair: There are things related
to Prorogation of Parliament and royal prerogative powers. We
will now all enjoy a five-year term, which gives us some consistency
and some ability to pursue issues in the longer term—sustainable
long-term inquiries rather than fly by night stuff just in case
there is going to be an early election. Are there not lots of
opportunities, and could we perhaps ask you through your good
offices, to explore some of those and actually let Members of
Parliament know some of the advantages that would accrue to Parliament
in this rather fundamental change of the Executive-legislative
relationship?
Dr Jack: Of course, Chairman.
Certainly. We can do that.
Chair: That would be very helpful.
Q15 Mrs Laing: I was going to ask,
generally, about the confusion or clarity that might arise during
the 14-day period if there was going to be a Dissolution. It just
occurred to me, when you raised the issue of the confusion in
the Lobbies last night. That is an immediate example. Apparently,
a Division bell did not ring and lots of people came running in
for the third Division. I have no idea what the result was but
we know, within the last 24 hours, that things can go wrong and
you do not always have an immediate and definite result if it's
likely to be close. You raised the issue of the fact that it is
a Member's right to vote in both Lobbies. I ask this question
to flag up the possibility of there being utter confusion, because
in the Bill, as I understand it, there is provision for a certain
percentage—we are talking here about percentages. In the
House of Commons we are used to talking about there being either
more ayes than noes, or vice versa—that's it. It
is a simple 50% of those voting. There are either more or not
more and that part is clear. But when you have a percentage, when
you have a proportion, it has to be a proportion of a certain
number. Now, is it possible that there might be total confusion
if some Members were to vote twice, as you just said is their
right? Then the number of votes cast in the House of Commons could
very easily be far more than the number of Members present to
vote. In which case, would that percentage, as expressed in the
Bill, be a percentage of the number of Members of Parliament currently
sitting in the House, or would it be a percentage of the votes
cast on that particular occasion?
Dr Jack: On that matter I think
the Bill is pretty clear. It says the [odq]number equal to...two
thirds of the number of seats of the House[cdq], so it doesn't
matter how many people vote or don't vote in both lobbies.
Mrs Laing: Thank you for that answer.
I merely ask the question to put it on the record. I put it to
you and the world in general that it does matter, because supposing
20 Members voted twice then that would confuse the numbers. But
I merely make that point to show that if such a thing were to
occur, this Committee thought of it first.
Dr Jack: Very important.
Q16 Mrs Laing: Of course. That brings
me on the real issue. The example I have just given may or may
not lead to confusion. My real concern is the possible lack of
clarity during the 14-day period after a vote of confidence. I
suggest that it would be bad for Government, and it would be bad
for the country, if there was no clarity about who was actually
in government. I wondered if you had anything to say about that
part of the Bill and the confusion or clarity that might arise.
Dr Jack: Obviously it is an innovation
in our terms, because I think, as all Members recognise, in Westminster
there is a sort of impatience—if I can put it that way—to
get things decided and done. On the other hand, periods of this
sort are written into the constitutions of many other countries—I
can see the Chair nodding—and this is perhaps something
we have to get used to. It is certainly a change in our culture,
if I can put it that way, that there is a longer period than normal
for such a matter to be resolved.
Q17 Tristram Hunt: I was going to
pursue the nature of no confidence motions, and whether you are
also concerned about a lack of clarity in the Bill as to what
would constitute a no confidence motion. There are a number of
examples of previous Bills suddenly becoming confidence motions
and then Dissolutions. Could you explore those ideas?
Dr Jack: Yes, I think there could
be areas of difficulty on this matter. One of them where I think
there would not be a difficulty is the straightforward motion
that this House has no confidence in Her Majesty's Government.
I think it must be pretty clear that that is a confidence motion,
however clever a forensic examination of the words might be. So
there is one category, I think, that is pretty clear. The Speaker
in considering these matters would have no difficulty with that
motion.
I think members know that that is not the only
kind of no confidence motion. The practice about no confidence
is really again, Chair, echoing a little of what you said at the
beginning, a matter for the Government; the Government decide
what is confidence and what is not. The Second Reading defeat
of a major piece of legislation introduced under manifesto, I
think, would probably be regarded as a confidence matter, and
possibly the defeat of a Finance Bill implementing a Budget. In
the past, these things have been defined as confidence motions:
the Second Reading of the European Communities Bill was defined
as a confidence matter. Going back in history there have been
quite obscure things that Governments have decided should be matters
of confidence. I came across an Adjournment motion that was regarded
as a matter of confidence by the Government.
I think that what is a confidence motion—other
than the very straightforward one, [odq]There is no confidence
in Her Majesty's Government[cdq]—is an ambiguous matter.
I am being a bit myopic, Chair, and I know that you are thinking
that, about clause 2. Those are matters within the House that
are easily soluble. The Speaker would simply ask the Government,
[odq]Is this a confidence motion or isn't it?[cdq], or the Government
would announce it. When the matter is before the court, this will
lead to arguments.
Q18 Chair: Just on a point of clarification.
So, it would be a sensible way forward to specify a form of words
that constitutes a confidence motion?
Dr Jack: Yes.
Chair: And nothing else—
Dr Jack: And nothing else, yes.
Chair: It isn't, [odq]We think that might
have been the sort of one we had the other day. [cdq] No, it's,
[odq]It is in the Standing Orders. It is very clear. You must
move it in the following terms and sustain the relevant majority.[cdq]
Dr Jack: Yes. What's happening
here, I think, is that the provision of the Bill is, as it were,
incorporating the convention without making that clear. It is
talking about a no confidence motion, but it is not clear exactly
what that means in terms of the convention. I have no doubt, of
course, that the Government would prefer that to be the case.
The Government would not wish to be pinned down too closely.
Q19 Tristram Hunt: You have outlined
a number of problems with this hastily concocted Bill. Is part
of the solution, as you see it at the end of your report, simply
for elements to be written into the Standing Orders, to solve
all these particular problems, to avoid the problems of judicial
review and legal interference?
Dr Jack: Yes.
Tristram Hunt: So there is actually a
way through; it's just not in this Bill.
Dr Jack: Yes, that is the case,
Chair. That is really what I am saying. You have invited us to
look into the advantages of fixed-term. It is clause 2 of the
Bill; it is the way in which the Bill affects parliamentary privilege
that concerns me now. I wonder if I can just slip in that the
Government have announced that they intend to produce a draft
parliamentary privileges Bill. It therefore seems odd to me that
a significant privilege matter is being dealt with in advance
of legislation that is coming to the House.
Q20 Chair: But in response to Mr
Hunt's question, do you think it is sensible to have an explicit
provision in the Standing Orders of the House?
Dr Jack: Yes. The Standing Orders
of the House could deal with specific situations. That could indeed
translate the requisite majority as well. I agree with Eleanor
Laing that the notion of percentages, as opposed to numbers, is
rather alien to us. But it could be written into the Standing
Order that 433 Members must vote in the affirmative. As you know,
Chairman, the closure motion—the motion for a closure in
the House that brings debate to an end—needs a specified
majority in the affirmative: you have to have 100 Members voting
aye. So the notion of a qualifying number in the Standing Orders
is nothing unusual. It could be put into the Standing Orders.
Q21 Chair: So it seems that we share
a view around the table that it should be written. One view is
that it could be in the Standing Orders, and another is that it
could be in the statute. The advantage of a statute is that the
Government must go through what they think is a very long public
process of producing a Bill, whereas Standing Orders can be amended
by a Government majority in the House, pretty much on a couple
of days' notice. These things could therefore be changed despite
the view of many parliamentarians, whereas if it is a statute,
at least it's out there and we can see what they are up to.
Dr Jack: That is your view, Chair,
yes. [Laughter.]
Chair: I'm sorry—there was a question
mark at the end of the statement.
Dr Jack: I thought that you were
putting a proposition to me.
Chair: Is that your view?
Dr Jack: There are two ways, yes.
Chair: Do you share that view?
Dr Jack: My view is that these
matters should be in the Standing Orders of the House, because
they are matters of jurisdiction that should be kept within the
House.
Q22 Nick Boles: I am a new boy so
I don't know these things and just want to be clear on something.
Can even a Standing Order that requires a super majority for a
particular kind of motion be changed by a simple majority?
Dr Jack: Yes. Standing Orders
are changed by a simple majority, although it is not inconceivable
that the Standing Order could contain a provision for a majority
to change the Standing Order. But that would be quite an innovation.
These would be [odq]constitutional[cdq] Standing Orders that might
require—
Q23 Nick Boles: On another related
point coming from my ignorance, is there any way of linking? One
of the advantages of putting this in legislation is that it will
then, of course, have to go through the Lords as well. Is there
any way of doing it by Standing Order that somehow makes it necessary
to also go through some kind of Standing Order process in the
Lords, so that you have a bicameral lock that the legislation
provides?
Dr Jack: Not necessarily. These
would be motions in the House, so there would not necessarily
be a link. That is correct.
Q24 Chair: For colleagues around
the table, particularly new ones, Standing Orders are regularly
suspended by Government, probably on a daily basis. The 10 o'clock
rule is just nodded through as a suspension, so what's in the
Standing Orders, unlike the statute, can be altered very rapidly
at the whim of someone like the Chief Whip. Is that correct?
Dr Jack: Yes, that is correct,
Chair.
Chair: Back to my list—I am sorry
to have left people waiting. Andrew, can I just get a few other
people in, because they have been very patient, particularly with
me?
Q25 Catherine McKinnell: This relates
to the previous point that we discussed. We have highlighted a
few issues that would need to be clarified within the Standing
Orders in order to eliminate, as far as possible, potential judicial
challenge to a decision. But this is not going to take away entirely
the issue of handing over exclusive jurisdiction, presumably.
We are just trying to whittle down the number of potential challenges
that might be brought. I just wanted to ask you, because I presume
that you have considered it, about the potential consequences
of a judicial challenge to a motion of no confidence of this sort,
in order to put a bit of a picture, in practical terms, on what
it might mean for the country, the Government and this House if
these things were not clarified in the Standing Orders.
Dr Jack: Well, we would be in
new waters, I think, if there was such a situation. As I said,
there are countries where there are constitutional courts to consider
these matters and that is where they would end up—in a Supreme
Court. Incidentally, we have a Supreme Court but it has not yet
got its teeth into this kind of thing. But, it would be a process
by which a High Court would have to decide this. The other thing
is that once you are enmeshed in the legal process, you know very
well that there are different levels of courts, and different
levels of courts come to different decisions. I think that I am
right in what I am about to say, Chair, but there are other witnesses
who would know more about these things. There was a dispute in
the German constitutional court about this very matter, about
whether there had been a Dissolution or not. I think that it was
in 2005. So, there is a constitutional court that deals with that.
But once in the courts, the process would be in their jurisdiction
and not in ours, if I can put it that way.
Q26 Catherine McKinnell: And
in the meantime, presumably, we are left in a suspended state.
Dr Jack: In the meantime, we would
be left in suspension.
Q27 Catherine McKinnell: So,
on that basis—apologies Chair, one more question—are
you fundamentally opposed to the idea of handing over the rights
to exclusive jurisdiction or, if it can be managed through the
Standing Orders, is it something that you can see could be managed
going forward as a workable solution?
Dr Jack: I think that it
could be managed in the Standing Orders at the moment. If we move
further along the line towards a written constitution—as
I mentioned, we have a privileges Act coming along—then
the whole matter can be reviewed in the round, and that is how
it should be done. And I might just add, Chair, that last year
you were asking me, when I came, how many Select Committees I
had appeared before. There were a number of Joint Committees and
Select Committees last year on various aspects of privilege, including
very specific matters: bribery on the one hand and the working
of the IPSA Bill on the other. Joint Committees and the Justice
Select Committee of this House have said that a piecemeal dabbling
with privilege is not a good idea. So, it is not my view, it is
the view of Committees of both Houses. The Joint Committee on
Parliamentary Privilege—a Committee of both Houses of Parliament—whose
great tome, which was the last authoritative investigation into
this matter, I have here, also advocated a comprehensive privileges
Act and said that the dabbling with privilege in a piecemeal fashion
had been very unsatisfactory in the past.
Q28 Chair: You are raising the bogey
of judges coming in and walking down the corridors telling us
all what to do, but don't you accept that there are some not only
legitimate but essential areas and cases in which the judiciary
must defend the rights of the citizen if they are threatened by
an over-powerful Executive, even when that over-powerful Executive
is in control of the House of Commons?
Dr Jack: Yes, I do, and we have
a system of human rights protected in the European courts and
so on, and they are extremely important, but they do not impinge
upon proceedings in the House of Commons.
Q29 Mr Chope: It seems that what
you are concerned about is that we are having a proposal to have
a partly written constitution—an incremental written constitution—without
actually officially saying that we are tearing up our unwritten
constitution, which is, as I said earlier, comprised in the Standing
Orders of the House. And, therefore, instead of going along the
lines that the Government are saying, these ideas could be incorporated
into the Standing Orders in our unwritten constitution. Did the
Government ask you to draw up some draft Standing Orders to see
whether those draft Standing Orders could meet this objective?
Dr Jack: The short answer is that
they did not. I am not challenging the right of the Government
to introduce whatever legislation they wish to introduce, but
what you have said is indeed my view: these matters should be
incorporated in the Standing Orders of the House—clause
2 only. There would still be fixed-term Parliaments.
Q30 Mr Chope: Do you agree with Professor
Dawn Oliver that clause 2(2) would permit the incumbent Government
to have a vote of no confidence motion passed by their own supporters
to secure an early Dissolution?
Dr Jack: There must be ways in
which any system could be used. Again, there are examples in the
German context where it is alleged—or has been said—that
the Government have manoeuvred Dissolutions in the German Parliament.
Clearly, any system can be manipulated, but probably other witnesses
might be better at answering on that subject.
Q31 Mr Chope: When it was challenged
in Germany, it was because it had a written constitution. It was
challenged in a constitutional court.
Dr Jack: Precisely.
Q32 Mr Chope: We could safeguard
against that possibility by our Standing Orders. If it turned
out that those Standing Orders were inadequate, we could change
them overnight. We could change them without the problem that
we would encounter if we had legislation whereby we would have
to get the agreement of the other House to change the legislation,
even if we wanted to change it in this House. We would be limiting
our own powers even more by having legislation.
Dr Jack: Yes, I agree with that.
Q33 Chair: At a tangent on Standing
Orders, are you satisfied that this Select Committee has had due
opportunity to do its job of pre-legislative scrutiny effectively
in terms of the Bill?
Dr Jack: That is a very leading
question. Do you want me to answer yes or no? Is that not for
the Committee itself and the House to decide?
Q34 Chair: You have been very forthright
in giving us your views on the intricacies of how a premature
Dissolution can take place. I wondered if you felt on the bigger
issue of parliamentary scrutiny that so far this has been a process
that you would commend to other Committees.
Dr Jack: I think that the Committee
is doing a fantastic job. That is the first thing that I have
to say. The second thing, if you press me on this, is that it
would have been better for the matters to be dealt with in a draft
Bill.
Q35 Chair: Would you concur with
the views of the Leader of the House that normally Bills should
enjoy a 12-week pre-legislative scrutiny period?
Dr Jack: Yes. I think that pre-legislative
scrutiny in this sort of area is really important. As the Committee
appreciates, these are complex matters and they need examination.
They need outside views as well.
Q36 Chair: Would that view be best
founded in the Standing Orders of the House so that, in future,
it would just be a standard part of Bill making, like a Second
Reading and a Committee stage, so that we could enjoy the possibility
of proposing changes or improvements to Bills?
Dr Jack: I think that such a Standing
Order would fall into the category of those that you said were
suspended frequently. Governments would be very reluctant to be
tied down in their legislative programme to that extent, but I
share your sentiment.
Q37 Mr Turner: I think we have established
that the Commons could do this on its own and that the Lords need
not have a view. May the Lords have a view on imposing this procedure,
without the current proposed legislation?
Dr Jack: To achieve the fixed-term
Parliament part, we need a Bill. That Bill, of course, goes to
the House of Lords as well and must go through all the usual stages.
But I think that this matter could be dealt with in Standing Orders.
There would have to be a peg in the Bill, but the peg would relate
to the Standing Orders of the House of Commons only. I don't think
the Lords need be involved in that, but it would have to pass
the Bill, of course.
Q38 Mr Turner: Right. These are just
two or three random thoughts, not in any particular sequence.
We've agreed that the Supreme Court, under any system with legal
intervention, could almost inevitably control or attempt to control
what the House has done. I take it therefore that the European
Union could also, with a sort of further legislation, take over
what the Supreme Court has decided to tell us to do. Is that correct?
Dr Jack: Yes. I think there would
be various avenues of legal challenge, and I think it's the business
of courts to apply the law to individual cases; that is what courts
do. There could be various challenges in the different jurisdictions.
The European Court has entertained cases that British courts would
not look at, in terms of parliamentary privilege. That may be
a good thing or a bad thing, but it has done so. That's an additional
avenue, if you like. There are various legal avenues that could
be explored.
Q39 Mr Turner: Earlier today, you
pointed to some clause and said [odq]they do not impinge[cdq]—those
were your words. I wasn't quite sure what you meant. I think it
was with reference to clause 2, but beyond that, I'm not clear
what you meant.
Dr Jack: I'm just trying to think
back to what part of the discussion we were having. Was it that
if these provisions were in Standing Orders, they would not impinge
on legal proceedings, whereas if they were in the Bill, they would?
Mr Turner: I can't remember either, but
thank you for that attempt.
Q40 Sir Peter Soulsby: Can I just
return to the question of your obvious and powerful arguments
for using Standing Orders rather than legislation to govern the
mechanism for early Dissolution? The concern that the Chair and
others have expressed is the ease with which Standing Orders can
be suspended. Is there any precedent for finding ways of making
it more difficult to suspend particular Standing Orders?
Dr Jack: That's a very interesting
question. I think that there could be ways of building in some
sort of relative majority or something like that. We have discovered
a precedent—quite an old one, I have to admit—where
a decision could only be taken relative to a certain number of
the House. In principle, I don't see why it can't be done. I have
to admit—I would be silly if I didn't—that it would
be creating a distinct type of Standing Order, which was qualified
in some way.
Q41 Sir Peter Soulsby: But obviously
the concern is the ease with which Governments can, with a very
simple majority, often at the whim of the Whips, suspend or change
Standing Orders.
Dr Jack: Basically, Standing Orders
can contain whatever the House wishes to contain in them.
Q42 Sir Peter Soulsby: So there could,
in principle, be some form of lock that would be difficult to
undo.
Dr Jack: Yes. There could be.
Q43 Chair: As Enoch Powell didn't
say, if we don't have a written constitution, we have to go by
Standing Orders, which themselves are a constitution that can
be suspended by the Executive at will.
I have a rather detailed question, which is
about some of the things for which I may have been a little critical
of you—the minutiae. I am going to get into the minutiae.
If the House adjourns, or you promote the Adjournment of the House
to avoid a Dissolution motion, there is no redress. Let's say
the Government feel they are in a bit of a crisis in July—we'll
adjourn the House—and that gives you three or four months'
grace to try and pull together a coalition, to try and pass an
emergency economic package or get over some scandal in the Government.
Have you considered that, and is one way to circumvent that abuse
to give power to the Speaker to recall the House rather than the
Government acting through the Speaker to recall the House?
Dr Jack: I know, Chair, that this
is one of your favourite subjects—recall of the House.
Chair: Only for the last 20 years.
Dr Jack: Certainly, that would
avert that sort of situation. Actually, an example springs to
my mind. I think exactly what you've said has happened in Canada,
where Parliament was prorogued by the Government in order to put
things off. They didn't want an election and they didn't want
to face a confidence motion. That's exactly what has happened.
Q44 Chair: Is that not a wrinkle
we ought to be looking at as the Bill proceeds through the House—how
to block that possibility?
Dr Jack: I know, as I said, that
you are committed to that subject, yes.
Q45 Chair: Thank you, Sir Humphrey.
My second detailed question flips the equation
right over, which is the Government—effectively the Prime
Minister—retaining the right under royal prerogative to
prorogue the House. Similarly, do you think we can play this game
of chess to try to stop that happening if it is the will of the
House that a Dissolution takes place?
Dr Jack: Again, that brings to
mind the Canadian example, because I think in Canada the position
is that some of this sort of provision is contained in their constitutional
arrangements, but the Governor General has retained the prerogative
to dissolve, so they are in a kind of uneasy situation where there
is both a fixed arrangement and an unfixable arrangement—I
think that's what you're getting at—to eliminate that. The
Bill itself eliminates the royal prerogative in this area. The
Standing Order arrangement for these provisions could be the only
way in which such a thing could happen.
Q46 Chair: Would those be two items
that you would consider looking at as you look at perhaps enhancing
Parliament's role in such circumstances?
Dr Jack: Yes, of course.
Q47 Mrs Laing: I have a very brief
question, again for the sake of clarification. Is it correct that
in effect this Bill is only really determining the date of the
next general election, because immediately upon the election of
a new Parliament the Bill could be immediately repealed? Would
we then go back to what is now the status quo?
Dr Jack: I think you are asking
the question, can Parliament be bound? The answer is no. Any Parliament
can repeal any previous enactment.
Q48 Mrs Laing: So it would not be
wrong to say that the real effect of the Bill is to determine
the date of the next general election, and in fact it really doesn't
have a further reach.
Dr Jack: That is literally what
it does. It just determines the date 7 May 2015.
Q49 Chair: If it is not repealed—to
take Mrs Laing's point a little further—it stays on the
statute book, but it is otiose.
Dr Jack: Yes. I would defer to
others' more detailed knowledge of the Bill, but presumably—
Chair: I think it probably does, thereafter,
under clause 1(3), so it would continue unless repealed, as do
all statutes.
Dr Jack: Yes, that's right.
Q50 Mrs Laing: For the sake of clarity,
am I right in thinking that there is nothing in this Bill that
would prevent it, or could possibly prevent it, from being repealed
by a one-clause Bill in June 2015? Therefore, what this Bill actually
does is determine the date of the next general election, and really
nothing further?
Dr Jack: There is no reason why
the provisions of this Bill could not be repealed.
Chair: Which is the same with all statutes.
Dr Jack: Yes, which is the same
with all statutes.
Chair: Unless they are given the sort
of bulwark that I think Mr Boles and Mr Chope alluded to, of the
Second Chamber requiring the consent of the Second Chamber to
pass this sort of law, through the 1911 Act. There is a possibility
of entrenchment but obviously, as you said, not as a written constitution.
Dr Jack: Yes.
Q51 Nick Boles: Just a quick follow-up
on this point, so that I understand. Of course, that is true,
isn't it, of all statutes?
Dr Jack: Yes, it is.
Q52 Nick Boles: But the way our informal
constitution works is that there are certain things that become
entrenched because of the way in which they were brought about
and the general mood around them. Am I right in thinking that
if the Government had a big majority and really wanted to they
could repeal or massively amend the Parliament Act?
Dr Jack: Yes, of course.
Q53 Nick Boles: But there is a sense
that they couldn't; that they could, but couldn't. The question
is then a more vague and informal one. Does this become seen as
a constitutional measure, which it would be inappropriate for
a party—a Government with a majority—to change arbitrarily,
or not? What determines that?
Dr Jack: Those are matters of
convention in our system. If you had a written constitution they
would be defined. There are countries where these things are defined
but in our case it would be a convention. It would be hard to
imagine, for example, any Government introducing a Bill to repeal
the Bill of Rights of 1689, but they could in theory. So it is
convention.
Chair: They could come in and abolish
50 Members of Parliament, for example.
Catherine McKinnell: Or change to a four-year
term.
Q54 Mr Chope: This Bill is unusual
in that it is seeking to introduce a fixed-term Parliament for
the Parliament that has already started. In that respect it is
completely different from what happened in Scotland. Indeed, it
is not necessary to have a Bill to determine the date of the next
general election, when the Prime Minister has already announced
it and he has the prerogative power to determine that. Would you
think, Dr Jack, that it might be more appropriate for this Bill
to deal with fixed-term Parliaments from after this Parliament—in
other words, the next Parliament and subsequent Parliaments—so
that we could have proper consultation and debate about it, bearing
in mind that it is not necessary to have this Bill to fix the
date of the next general election?
Dr Jack: I have to be careful,
Chair. I think you have already got me to commit myself to the
fact that I would have preferred a preliminary stage, shall we
say, to the Bill—a draft Bill. I think you are really asking
me to answer a political question, which is not for me to answer.
Q55 Mr Chope: Not asking a political
question, can I ask you a precedent question? Are you aware of
any other precedent, anywhere in the world, for a Parliament deciding
during the course of its own Parliament that it is going to introduce
a constraint upon the length of that Parliament; in other words,
introduce a fixed Parliament during the course of that Parliament?
Dr Jack: I don't think I am qualified
to answer that. My knowledge pertains mostly to this Parliament.
Chair: Professor Blackburn may be able
to enlighten us, if we give him a little bit of notice by raising
this issue.
Q56 Mr Turner: Let us say that, on
6 November, the Queen's Speech fails to get passed. There would
be a fortnight's delay and then there would be a general election,
which would presumably take place on 24 December. That would be
the date in the future when the next five years was up. Is that
true, or does it go back to the normal 5 May?
Chair: I think there is a degree of discretion
to pass it.
Dr Jack: Yes, I think there is
a degree of discretion of two months in the Bill.
Mr Turner: Is it a month either way?
Chair: I think we can look that up.
Dr Jack, thank you very much. You have been
as urbane as always.
Dr Jack: Thank you.
Chair: We have totally failed to provoke
you in any way.
Dr Jack: I am very sorry about
that, Chair.
Q57 Chair: We completely failed to
get you to answer political questions, which is not your role.
Would you like to make a one-minute closing statement?
Dr Jack: I don't think so, Chair.
I think we have had a pretty good bash around the course and I
hope my view has been fairly clear. I would just say in summary
that I think that clause 2 raises practical problems also for
the Speaker, or challenges to what the Speaker does, that are
very easily dealt with within the House if those matters are kept
in the Standing Orders. By putting them in statute, you are opening
them to challenge in the courts. That is really the nub of my
difficulty with just the privilege effect, particularly, as I
said, in advance of a privileges Act. I don't see the hurry to
do that.
Chair: We look forward to receiving your
other paper.
Dr Jack: Thank you very much,
Chair, and good luck with your work.
1 Witnesses clarification: In one case and
the Deputy Speaker on another. Back
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