Written evidence submitted by the Clerk
of the House (FTPB 01)
FIXED-TERM PARLIAMENTS BILL: PRIVILEGE ASPECTS
Introduction
1. In this memorandum I address aspects of the
Fixed-Term Parliaments Bill which seek 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.
2. I make no comment on the policy purposes
of the Bill; indeed it would be improper for me to do so. My concern
is with the way in which provisions of the Bill impinge upon Parliamentary
privilege and which may bring the Courts and Parliament into conflict.
Privilege: exclusive cognizance and Article IX
3. Exclusive cognizance needs to be distinguished
from other aspects of parliamentary privilege such as the privilege
of freedom of speech which became articulated in Article IX of
the Bill of Rights 1689. In essence, exclusive cognizance is the
right of both Houses "to be the sole judge of their own proceedings,
and to settle—or depart from—their own codes of procedure."[1]
4. The making of Standing Orders of the Houses
regulating their business (and in the Commons their interpretation
by the Speaker) is the most significant feature of Parliament's
control of its internal affairs. Decisions under or about the
Standing Orders cannot be questioned by the courts or in any other
place outside Parliament.
5. The origin of Parliament's right to regulate
its own affairs is in its status as the High Court of Parliament
and its purpose is to prevent interference with its ability to
discharge its functions as a sovereign body. Whilst in earlier
times the threat of "interference" came from the Crown
(and in the case of the House of Commons, from the House of Lords[2]),
the later history of privilege centres upon Parliament's right
to function without interference from the Courts.
6. Although Parliament's control of its internal
affairs predates the Bill of Rights, Article IX nevertheless applies
to it since it proscribes the questioning of Parliamentary proceedings
in any place outside Parliament, in particular in the courts.
The principle of comity between Parliament and
the Courts
7. From the nineteenth century onwards, while
the courts held to the notion that the boundaries of privileges
enshrined in the Bill of Rights (which is, of course, a statute)
were matters for them to determine, they recognized the rights
of both Houses to have exclusive control of their internal proceedings.
8. In 1839 in the case of Hansard v Stockdale,
Lord Denman, while asserting the right of the courts to inquire
into whether privilege had been properly asserted, nevertheless
emphasized the fact that its internal proceedings were controlled
by the House itself. Later judgements confirmed that the Courts
should refrain from any interference with the way the Houses regulated
their affairs whether formal or informal.[3]
9. The principle of exclusive cognizance, or
jurisdiction of its internal affairs by Parliament has been recently
re-affirmed in the report of the Joint Committee on Parliamentary
Privilege in the following terms:
"Both Houses have long claimed and succeeded
in maintaining, the right to be the sole judges of the lawfulness
of their own proceedings and to determine, or depart from, their
own codes of procedure. Courts of law accept Parliament's claim
that they have no right to inquire into the propriety of orders
or resolutions of either House relating to their internal procedure
or management."[4]
10. It should be noted that the claim to exclusive
cognizance of proceedings means that Members cannot be compelled
to give evidence in any court unless they agree to do so, and
Officers of the House cannot do so without permission of the House
on any matter relating to proceedings, including such matters
as are provided for in this Bill.
11. For its part, Parliament recognizes the
principle of comity with the courts in a number of ways. Both
Houses apply the restraining discipline of the sub judice resolution
to their proceedings (except in legislating) when matters are
active before the Courts. Furthermore, it is a long established
convention that the Houses will not assert their privileges so
as to hamper the course of criminal investigations or proceedings.
The most recent statement of this mutual self-restraint or concordat
was made in a memorandum of the Attorney General, laid before
the House in April 2009.[5]
The provisions of the Bill
12. The Bill brings the internal proceedings
of the House into the ambit of the Courts, albeit indirectly by
the route of Speaker's certificates.
13. In Clause 2 (1) (a) of the Bill, the Speaker
is empowered to issue a certificate if the House has passed a
motion that there should be an early parliamentary general election.
Clause 2 (b) and (c) seeks to include in the certification a recording
of the fact as to whether the Motion that there should be an early
general election "was passed on a division" and that
"the number of members who voted in favour of the motion
was a number equal to or greater than two thirds of the number
of seats in the House (including vacant seats)."
14. In this provision, the Speaker is thus invited
to certify not merely what has been decided by the House but how
it has reached that decision.
15. In Clause 2 (2) of the Bill,
"An early parliamentary general election
is also to take place if the Speaker of the House of Commons issues
a certificate certifying that -
(a) on a specified day the House passed a motion
of no confidence in Her Majesty's Government (as then constituted),
and
(b) the period of 14 days after the specified
day has ended without the House passing any motion expressing
confidence in any Government of Her Majesty."
16. 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. Not only might the Speaker's decisions involve difficult
judgements—for example about what constitutes a confidence
motion, the selection of amendments to such Motions and the consequences
of their being carried—but they would be made in a potentially
highly charged political situation which could also lead to challenge
in the House. As these would become justiciable questions, the
courts could be drawn into matters of acute political controversy.
17. Although the provision in 2 (3), that the
Speaker's certificate is conclusive for all purposes, is meant
to mitigate challenge or questioning in the courts, it cannot
be a protection against the courts interpreting statute either
in the UK or in Strasbourg. The comity established between Parliament
and the Courts has relied on the fact that the internal proceedings
of the House were entirely matters within the House's jurisdiction
and were not for determination by the courts. Thus the principal
procedures and practices of the House arise from Standing Orders,
Resolutions or Rulings from the Chair, none of which can be legally
challenged, nor can the Courts' assistance be sought in interpretation
or enforcement. The same applies to the House's control, through
the Speaker, of the precincts. But embodying these internal proceedings
in statute radically changes their status since, by reason of
being embodied in statute law, they become questions which are
ultimately to be determined by the judiciary rather than by members
of the legislature accountable to the electorate whom they serve.
18. The history of the courts' involvement in
interpreting the meaning of words in the Bill of Rights and the
implications of human rights aspects of European law, provide
no basis for concluding that the courts will keep out of this
new statutory territory. Indeed, it is the purpose of the courts
to interpret and apply the law to individual cases. 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'
because in making it the Speaker had made an error of law.[6]
19. In passing, I would mention difficulties
in the operation of Section 2 (4) of the Bill. In the first place,
it is the Speaker who has exclusive authority over the records
of the House's decisions. Furthermore, the possibility of disagreement
with his Deputies could also make the subsection difficult to
operate. The provision imposes a legal duty on the Speaker to
consult the Deputy Speakers "so far as practicable".
The question of whether consultation was "practicable"
would become a legal question, with the courts making determinations
with respect to the relationship between the Speaker and his Deputies.
The Parliament Acts 1911 and 1949
20. The Parliament Acts 1911 and 1949 regulate
the relationship between the two Houses in defined circumstances
enabling the will of the Commons to prevail over the House of
Lords if the Commons pass a bill originating in the Commons in
identical form in two successive sessions of Parliament and it
is twice rejected by the Lords. They also involve Speaker's certification
and prescribe proceedings on "suggested" or compromise
amendments. In 2005, the supporters of hunting launched a legal
challenge to the Hunting Act 2004 (which had been passed into
law under the provisions of the Parliament Acts).
21. The Court action rested upon a challenge
to the validity of the 1949 Act on the grounds that it had gone
beyond the powers conferred by the 1911 Act. Although the Law
Lords dismissed the case on appeal, the courts were prepared to
consider the validity of an Act of Parliament.[7]
Moreover, in the Court of Appeal, the judges implied that there
were limits to the circumstances in which the Commons could impose
its will on the Lords through the Acts.
22. Another procedural matter affecting Speaker's
certification might have been challenged if a decision in the
Lords had gone a different way during the passage of the Hunting
Bill through the Houses. This was in connection with a "suggested"
amendment (a compromise involving a delay in the coming into effect
of the Act). Different views were taken in the two Houses as to
whether the Speaker could include the suggested amendment in his
certification, even if the Bill was not passed in the Lords. In
the event the suggested amendment itself was rejected by the Lords
so that the Speaker was not faced with this decision but had he
been and because the matter was highly contentious it too could
have been the subject of legal dispute.[8]
23. The case of the legal challenge to the Hunting
Act 2004 and the validity of the Parliament Act 1949 indicates
the extent to which matters affecting the internal jurisdiction
of the Houses may become adjudicated in the courts once they are
embedded in statute.
Challenges to the Bill if enacted
24. In the case of the existing Bill, the possible
areas of challenge are wide-ranging. For example, any interested
party (which given the subject of the motion could be widely interpreted)
could challenge whether a motion for dissolution had been correctly
worded or processed, whether the decision had been correctly reached
and recorded, whether the casting vote of the Speaker had been
used appropriately, whether nodding through "counted"
as voting, and so on. In addition, Members who have been prevented
from voting for whatever reason (transport delays, suspension,
not taking the oath) may have an argument that they have a statutory
right to vote in Clause 2(1)(c) cases, since the qualifying majority
is one of the number of seats in the House (as opposed to Members
present and voting). Conceivably such an argument could be bolstered
by relying on the right to freedom of expression under Article
10 ECHR.
25. Legal challenges of this kind in systems
regulated by statute are not a purely theoretical possibility.
In Germany in 2005, the Federal Constitutional Court was asked
to decide on a case concerning dissolution following a vote of
no confidence in the Bundestag. The possibility of an election
being delayed or cancelled as a result of legal challenge must
be an unwelcome one.
26. Lastly, it should be observed that, by writing
into statute law how a decision is taken, divests the House of
power to change those procedures without the initiation of further
legislation by the Government. In parliamentary systems regulated
by a written constitution (or a set of constitutional statutes
such as in Canada), adjudication of such matters can take place
in a constitutional court. Usually there are safeguards against
interference with parliamentary privilege written into the constitution.[9]
That is not the position in the United Kingdom.
Conclusion: a way forward
27. The focus of my memorandum has been to consider
how the provisions of the Bill affect the House's internal jurisdiction
or exclusive cognizance and the protection of the questioning
of its proceedings under Article IX of the Bill of Rights. I do
not, as I said at the beginning of this memorandum, question the
policy objective at the core of the Bill, but it is important
that the House should understand what the implications of the
Bill's provisions are in respect of its internal proceedings.
28. It would be possible to avoid these privilege
problems if the provisions of the Bill relating to the calling
of early parliamentary general elections were instead to be written
into the Standing Orders of the House, thereby preventing them
from being questioned or interfered with outside Parliament. Moreover,
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 a number 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,[10]
but in the past the House has also required a relative majority
for reaching decision. This was the case in questions relating
to urgent business where a Question could only be resolved in
the affirmative if there was—"a majority of not less
than three to one, in a House of not less than 300 Members".[11]
29. So far as dissolution is concerned, the
Standing Order could include the mechanism for an Humble Address
to the Crown seeking dissolution when the conditions of the Standing
Order were met, thereby incidentally preserving the Crown's prerogative
in the matter of dissolution.
30. There is therefore precedent and a route
by which the purpose of the Bill on fixed-term Parliaments could
be achieved which would avoid the constitutional innovation of
moving such matters into the judicial province and so leave undisturbed
the House's mastery of its own proceedings.
24 August 2010
1 Erskine May 23 edition, p 102 Back
2
For numerous examples of this aspect of "interference"
see J Hatsell Precedents of Proceedings in the House of Commons,
4 vols (1818) Back
3
See Bradlaugh v Gosset [1883-84] 12 QBD 271; R v Graham Campbell
ex. parte Herbert [1935] 1 KB 594, McGuiness v United Kingdom
1999 (Application 39511/98) Back
4
Joint Committee on Parliamentary Privilege Report HL 43; HC 214
(Session 1998-99) para 232 Back
5
Set out in House of Commons Committee on Issue of Privilege, First
Report HC 62 (Session 2009-10) Ev 130-1 Back
6
Cf. the reasoning in the well-known case of Anisminic v. Foreign
Compensation Commission [1969] 2 AC 147 where an error of law
by the FCC made its decision a nullity and therefore not protected
by a provision in the Act establishing the FCC purporting to oust
the jurisdiction of the courts. Back
7
For skeleton arguments for Claimants, see High Court judgement
EWHC 94 (Admin) at para 11 Back
8
See also T Mohan "The Hunting Act 2004 and the Parliament
Acts", The Table Vol 73 2005 pp 34-45 Back
9
In the Canadian case it is concluded that "The Canadian House
of Commons has, therefore, acquired as one of its more important
privileges, the exclusive right to regulate its own internal affairs
and to control its agenda and proceedings." House of Commons
Procedure and Practice, 2nd Edition 2009 p. 253 Back
10
A specified majority (of not fewer than 100) is needed for the
question on a closure to be decided in the affirmative (SO No.
37). Numbers needed for Standing Orders to have effect also apply
to emergency debates (SO No. 24) and for quorum (SO No. 41) (not
fewer and fewer than 40 Members respectively). Back
11
Commons Journal Vol 136 1881 57 Back
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