House of Lords Reform Bill

Debate between Bernard Jenkin and Jesse Norman

Monday 9th July 2012 Commons Chamber

[Jesse Norman]

My hon. Friend makes a shrewd point very quickly and elegantly.

The Bill is being pushed through the Commons by the Government—before the summer, on a whipped vote and with a guillotined debate—but the central question concerns the likely constitutional crisis that will arise from the Bill, which will transform the Lords into a Chamber competing with the Commons. The result will be gridlock, cronyism and a rise in special-interest politics.

The US offers a useful cautionary tale. The American political system is manifestly struggling: beset by gridlock; vulnerable to powerful special interests, from the gun lobby to the American Association of Retired Persons; and its politicians elected by corporate lobbyists through political action committees, recently liberated by the Supreme Court from any spending constraints under the first amendment. The two Houses have repeatedly found it impossible to achieve consensus on important legislation. Pork-barrel has been replaced by stand-off. President Obama’s health care Bill is a classic example and it ended up in the Supreme Court.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

Is not my hon. Friend adverting to the fundamental conundrum at the heart of the Government’s presentation of the Bill? On the one hand, they are arguing for a more legitimate House; on the other, they are arguing that there will be no change in the relationship between the two Houses. It does not add up.

[Jesse Norman]

My hon. Friend is exactly right. As my noble Friend Lord Forsyth put it, what would be the point of electing these people if not to give them more power? Exactly the same thing as has happened in the US will happen here. I refer my colleagues and Members across the House to Lord Pannick’s brilliant memorandum on the issue, which has been published this afternoon. Lord Pannick is widely regarded as one of the most excellent lawyers and advocates of his generation, and is specifically expert in the Parliament Acts. He is also precisely the kind of person who would never be willing to stand for election to a new Senate. In his words:

“The Bill does not adequately address the central issue of constitutional concern: the fact that a House of Lords most of whose members will be elected will almost certainly be much more assertive than the unelected House of Lords and reluctant to give way.”

Lord Pannick states that the Parliament Acts

“only relate to the end of the legislative process, and not the day-to-day conventions which (at present) result in the Lords giving way to the Commons. Indeed, the Parliament Acts do not apply at all to Bills introduced in the House of Lords or to subordinate legislation.

The crucial question is this: should the Bill seek to regulate all these matters, or leave them to convention? If it leaves them to convention, then the result will be disputes between the two competing chambers. If it regulates these issues, then the result will be that relations between the chambers become justiciable in law, as they did over the Hunting Act, which went all the way to the Supreme Court.”

United Kingdom Statistics Authority

Debate between Bernard Jenkin and Jesse Norman

Tuesday 13th December 2011 Commons Chamber

[Mr Jenkin]

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

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

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

[Mr Jenkin]

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

Fixed-term Parliaments Bill

Debate between Bernard Jenkin and Jesse Norman

Wednesday 1st December 2010 Commons Chamber

[Mr Jenkin]

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

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

I quote again from the Clerk’s memorandum:

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

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

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

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

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

[Mr Jenkin]

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

The Clerk, in his memorandum, specifically says:

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

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

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

Paragraph 9 states:

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

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

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

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

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

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

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

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

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

[Jesse Norman]

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

[Mr Jenkin]

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

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

--- Later in debate ---

[Mr Jenkin]

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

[Jesse Norman]

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

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

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

[Tristram Hunt]

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

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

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

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

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

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

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

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

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

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

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

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

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