Fixed-term Parliaments Bill
Debate between Bernard Jenkin and Tristram Hunt(14 years ago)
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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.”
Erskine May makes it clear that “cognizance” refers to 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.”
The Clerk is clear in a bald statement in paragraph 12 of his memorandum:
“The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates.”
He goes on to explain how that occurs under clause 2(2), which we have already debated. In paragraph 16 he states:
“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—
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.
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.
I would finally raise a point that the Clerk of the House has also raised. As he put it in a note to the Committee in the other place,
“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”,
if it is not for the specific political purposes of the current Government?
Parliamentary Voting System and Constituencies Bill
Debate between Bernard Jenkin and Tristram Hunt(14 years, 2 months ago)
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Mr Jenkin
That is outside the purview of my amendment.
There might be a perceived advantage to the yes campaign, which the Deputy Prime Minister is pursuing, or to the coalition. There is a risk of a serious collapse in Liberal Democrat support at next year’s local Scottish and Welsh elections, but it would be of advantage to the Liberal Democrats to have the enticement of the referendum on the reform of the electoral system to encourage their activists to press their voters out to vote. I might be wrong—I will stand corrected if I am—but we have not had an explanation. Either way, it is wrong in principle that the Executive should seek to use elections to influence the outcome of a referendum on an important constitutional question, or that they should use the referendum to influence the outcome of elections.
Amendment 4, which is in my name and that of my right hon. and hon. Friends, is similar to amendment 155—the Scottish National party proposal. It provides for an order whereby the Government can choose any date that does not coincide with a poll that is regularly held for parliamentary, Assembly or local government elections. In addition, it proposes—this is important—that the referendum is held
“at least six months after the commencement of the referendum period”.
As I mentioned, the Electoral Commission made it clear that it will press for a deferment of the referendum if the rules of the referendum are not clear on a six-month time frame from the proposed date. In fact, the referendum period should count, because it restricts what people can spend and what Ministers can say or announce to promote a particular viewpoint, which might distort the result. The six-month period provides the framework of discipline that provides the fairness of the referendum. Unless we have a six-month referendum period, which is not possible if we do not change the date, we are tempting providence that there will be an unfair referendum.
Tristram Hunt (Stoke-on-Trent Central) (Lab)
Is the hon. Gentleman any clearer on the Government’s intentions if the House of Lords makes a significant amendment on the timing of the referendum?