Fixed-term Parliaments Bill

Jacob Rees-Mogg Excerpts

Wednesday 1st December 2010 Commons Chamber

[Mr Harper]

Yes, it is.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I cannot think of an example of such a position since the reign of Queen Victoria, who refused to accept Robert Peel as Prime Minister, and I think it inconceivable that it would arise in a modern constitution.

[Mr Harper]

I did say that there would have to be an extraordinary set of circumstances for the Prime Minister to behave in such a constitutionally outrageous way. They would be circumstances in which a Prime Minister was abusing and stretching the constitution in order to stay in office and avoid the consequences of losing a vote of confidence in Parliament.

[Jacob Rees-Mogg]

I think that that is extraordinarily unlikely. It is theoretically possible that the Queen could refuse assent to a Bill, but that has not happened since the reign of Queen Anne. Such constitutional anomalies remain theoretical, but so theoretical that it is inconceivable that they would arise whatever the emergency. I really feel that to rely on that for the passage of the Bill is most unsatisfactory.

[Mr Harper]

I am not relying on it for the passage of the Bill. I was referring to the issue raised by my hon. Friend the Member for Epping Forest, who last week, on behalf of the Political and Constitutional Reform Committee, raised some potential scenarios with which she was uncomfortable. I believe, and the Government believe, that those scenarios are indeed, as my hon. Friend says, theoretical, and extremely unlikely to happen. My point is that if a Prime Minister behaved unconstitutionally in such a theoretical and extremely unlikely way, a mechanism that already exists would be invoked. However, the Government contend—and I agree with my hon. Friend on this—that both sets of circumstances are highly unlikely. It is our contention that the eventuality to which my hon. Friend has referred would not be necessary, because a Prime Minister would not behave in a way that stretched constitutional convention to breaking point.

--- Later in debate ---

[Mr Jenkin]

Sorry, 1689. My hon. and learned Friend will keep me up to the mark, because he is much more of a lawyer than I am.

In recent years, however, the tension between the courts and the independence of this House has been thrown into relief. I remind the Committee of cases such as the one brought by Lord Rees-Mogg for judicial review of the ratification of the Maastricht treaty after this House had passed an Act of Parliament.

[Jacob Rees-Mogg]

I would like to clarify that the judicial review case brought by my noble kinsman was not in any way to challenge what had happened in this House. It was to challenge the use by Ministers of the royal prerogative, which is why the judicial review was allowed by the courts.

[Mr Jenkin]

I stand corrected—again. I fear that that may occur rather often during my presentation. The case relating to the Hunting Act 2004 was certainly an attempt to impede the free functioning of Parliament in its judicial function. In addition, an attempt was made to judicially review the lack of a referendum on what was then the Lisbon treaty. There are other examples of that tension, not least over the arrest of my hon. Friend the Member for Ashford (Damian Green), and I believe that only today, in connection with another matter, are the limits of the courts being resolved.

The present situation begs for something that many have recommended for some time: that this Parliament should have a privilege Act to delineate clearly the immunities of Parliament in relation to the functioning of the courts, but we are in an even more tense situation because we are arranging our constitution in other areas that question the very sovereignty of the House. We now have a Supreme Court and it is widely known that many jurists who serve at various levels of the judiciary take differing views of the notions of parliamentary sovereignty and parliamentary privilege. There was recently a case concerning the possible effective expulsion of an hon. Member as a result of a judicial decision. I do not comment on its merits as it is still sub judice. I merely advert to the fact that it represents another testing of the boundaries between the courts and Parliament.

We are told not to worry—the Bill’s provisions are immune from the courts, and nobody is going to interfere in what we decide is a Speaker’s certificate, certificating a vote of no confidence that satisfies the majority. When we are blandly and bluntly told that by the Government and at the same time told by the Clerk of the House who has bravely and independently—in his constitutional capacity as an independent guardian of our constitutional arrangements—issued a memorandum, to which I shall refer later, that flatly contradicts the Government’s view, we are obliged to take the matter very seriously.

I cannot think of a precedent, other than the Parliamentary Standards Bill, where a Government flatly refused to accept the advice of the Clerk of the House on a question of the potential justiciability of legislation before the House. The Bill before us is a major change to the constitutional settlement of this country, and it is backed by people in the Government who we know favour a written constitution—an entirely different constitutional settlement. That raises the question whether the Government have got it right when they say that the Clerk’s fears are to be disregarded.

With the indulgence of the Committee, I shall quote rather extensively from the memorandum submitted by the Clerk as written evidence to the Political and Constitutional Reform Committee. He states that the Bill is

“to make statutory provision for matters which fall within Parliament’s exclusive cognizance and which may affect the established privileges of the House of Commons as well as upsetting the essential comity which has been established over a long period between Parliament and the Courts.”

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.