Fixed-term Parliaments Bill

Lord Howarth of Newport Excerpts

Tuesday 29th March 2011 Lords Chamber

[The Deputy Chairman of Committees (Lord Haskel)]

I have to inform your Lordships that if this amendment is agreed, I cannot call Amendments 36 or 37, because of pre-emption.

[Lord Howarth of Newport]

My Lords, I rise to speak to Amendment 39, which fits into this group covering various contingencies in relation to the resignation of the Prime Minister. My amendment would provide for an early general election if the Prime Minister resigned and, after 14 days, there had been no vote of confidence in any Government of Her Majesty.

This issue was raised by my noble friend Lady Jay during the proceedings of the Select Committee on the Constitution. She asked the Minister, Mr Harper, whether, if a Government resigned without losing a vote of confidence, that would trigger the 14-day provision. Mr Harper replied:

“If the government resigned and we were without a government, you would then have to have a process of government formation. I believe that we think that would be the case”.

That is not quite pellucid and it hardly inspires confidence that Ministers had thought rigorously about this legislation.

Mr Harper then wrote again to the Select Committee, stating that:

“There is nothing in the Bill that prevents a government resigning; the Bill is about the length of a Parliament. If a government decided to resign when the Speaker had indicated that he was not minded to issue such a certificate, then the 14 day period would not be triggered although, as I said to the Committee, a period of government formation would obviously follow. It would just not be time-limited”.

Your Lordships may consider that it should be time-limited and that we should not allow ourselves to get into the Belgian or Iraqi situation whereby a Government cannot be formed for very long periods.

Amendment 38 of the noble Lord, Lord Norton, specifies 28 days. As he anticipated, I think that 28 days is too long. His Amendment 35 does not specify any time limit, but just removes the 14-day provision altogether. It will be no surprise to your Lordships, following a previous debate, if I confide in you that that is a much more attractive provision. However, supposing we accept that time should not be unlimited in such circumstances. If we provided for 14 days before an early general election takes place, following the resignation of the Prime Minister, it would integrate provision for the contingency of the Prime Minister’s resignation with the provisions in the Bill for other early departures of a Government.

It may be wise to provide a clear remedy, given that we have the Bill. The Bill would abolish the royal prerogative of Dissolution. Currently, with the prerogative—as the noble Lord reminded us—if the Prime Minister resigns, the Queen takes soundings to see whether another party leader can form a Government. If he cannot do so, she dissolves Parliament. That remedy is removed by the Bill. The Bill allows resolution of the impasse only if two-thirds of MPs vote to dissolve Parliament. However, that is not a sure remedy, because the Opposition might prefer not to take their chances at an immediate general election—they might not co-operate to secure that two-thirds vote.

It is worth considering what might have happened in historical situations that some of us can at least dimly remember. In the Government of Mr Attlee in 1951, he chose to go to the country. Aneurin Bevan and Harold Wilson had resigned from the Cabinet, having disagreed with the Government’s budget. The Labour Party had a majority of five, and Mr Attlee judged that he could not carry on. Under this Bill, Mr Attlee could not have gone to the country. Under this Bill, Mr Heath could not have gone to the country in February 1974. Of course, Mr Attlee or Mr Heath might have appealed to the other leaders and secured a two-thirds vote of the House of Commons for Parliament to be dissolved and for there to be a general election. However, what might have happened in October 1974, when Harold Wilson chose to go to the country? Would the Conservatives, at that stage, have been ready to agree to a general election? We shall never know, but the answer is uncertain.

It may be as well to provide a clear remedy, although I anticipate that the Minister will point out that it would drive a coach and horses through the central purpose of the Bill, which is to prevent a Prime Minister from seeking an early general election. However, in such situations as I have sketched, it may be desirable and in the public interest for there to be an early general election. The fact that we have to debate these amendments once again shows the unwisdom of seeking to legislate for fixed-term Parliaments.

[Lord Tyler]

My Lords, I have the greatest respect for my noble friend Lord Norton of Louth, who has unrivalled academic expertise and authority in matters of this sort. I am a mere practitioner, so my contribution to this debate is very much probing, rather than definitive. I am generally concerned about the drift that would appear to be the theme of this group. The Committee is provided with three options. One would remove the 14-day period for the formation of a new Government if the existing one falls; one would extend that period to 28 days; and the other would keep it at 14 days but change the process by which it would happen. We therefore have a spectrum of three amendments, representing a scale: one with no period at all in which another Government could be formed; one with a 14-day period; and one with a 28-day period. Those of us of a centrist disposition might be naturally inclined towards the middle option—Amendment 39 in the name of the noble Lord, Lord Howarth of Newport. However, strictly speaking, Amendment 39 is not necessary, since it barely departs from the principle that the Government have already adumbrated in the Bill itself.

Therefore, I will concentrate principally on Amendment 35, which is the “back me or sack me” amendment. It would offer a Prime Minister who had lost the support of his or her party in the Commons the opportunity to go to the country instead of to the Palace. There is nothing wrong with that in principle. It might have provided some clear guidance to Thatcher, Major and Blair at moments when factionalism was on the cusp of becoming fratricide. However, again, the amendment is surely unnecessary. The Bill already allows for the Prime Minister to resign or for a new Prime Minister and a new Government to be appointed. What the amendment does is to take away from Back-Benchers in the House of Commons the power actively to insist on the replacement of the Prime Minister with another. That is the principle behind this change. Instead, it places the decision on going to the country, as now, back with the incumbent of No. 10. I thought Members on all sides of your Lordships’ House thought that was not necessarily the best result.

Under the Bill as it stands, a Prime Minister could effectively be disposed of, as Labour wanted to do with Blair for so long. A clear period would then exist for a new Government to be formed. Members of the Committee can imagine that, when Tony Blair eventually stepped down, the Bill’s provisions would have allowed Gordon Brown to form what he called a new Government, in much the same way that John Major did when Margaret Thatcher resigned. It is not, therefore, clear to me whether my noble friend seeks a move away from the principle that votes of confidence in the Government need not precipitate an election—the status quo—if another Government can be formed. Here is the nub of a very important principle. I wonder whether my noble friend is trying to move away from the principle that the Prime Minister must have the authority and confidence of the House of Commons to continue; and whether he is, therefore, moving towards a principle that there ought, automatically, to be an election if there is a change of Prime Minister.

In February 1974, Mr Heath said, “Who governs Britain?”. He did not say, “Back me or sack me”. We have referred to that election on several occasions in your Lordships’ House in recent months; it is one that many of us recall very well. I have no doubt that my noble friend could find much public support for that principle. However, on balance, I have always thought that British Governments should depend simply and solely on the confidence of the House of Commons to remain in office. That is a parliamentary democracy, not a presidential one.

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[Lord Wallace of Tankerness]

That is self-evident. One might well go back to 1977 when, quite clearly to forestall losing a confidence vote, the Government of Mr James Callaghan entered into a pact rather than a formal coalition with the then Liberal Party and they were able then to win a vote of confidence. You may say it was a Government of a different nature who proceeded to govern after that day because they were engaged in a formal pact and were not a new Administration, but they were different from the Government who had existed up to that date, who had not had a formal pact with one of the opposition parties.

[Lord Howarth of Newport]

In the scenario that my noble friend Lord Grocott was suggesting, would it actually be necessary under the Bill for there to be a vote of confidence? If the Liberal Democrats had simply decided that they did not wish to carry on in coalition with the Conservatives and made overtures to the Labour Party, there would not have been a vote of no confidence. There would simply have been a realignment within the House of Commons. As far as I can see, the provisions of the Bill are not activated in that situation.

[Lord Wallace of Tankerness]

I apologise. I had presumed that there had been a vote of no confidence in what would then have been a Conservative minority Government if the Liberal Democrats had left it. In that case a new Government would have had to be formed and there would have to have been a vote of confidence. I am sure that a new Government formed in that way would have to have a Queen’s Speech, which would trigger a potential confidence motion, and if they won that they would continue to govern. As my noble friend said, if an Administration have the support and the confidence of a majority in the other place, they can govern. I apologise if I misinterpreted the question put by the noble Lord, Lord Grocott. I presumed that there had been a motion of no confidence, and that may not have been part of the hypothesis that he put. However, the new Government would be susceptible to a vote of no confidence if they did not have a majority and could not command the confidence of the House. Therefore the procedures in this Bill would then be triggered; otherwise it is as the noble Baroness says.

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Moved by

[Lord Howarth of Newport]

42: Clause 2, page 2, line 15, at end insert “and ought not be impeached or questioned in any court”

[Lord Howarth of Newport]

My Lords, after the words in Clause 2(3)—

“A certificate under this section is conclusive for all purposes”—

my Amendment 42 would add the words,

“and ought not to be impeached or questioned in any court”.

Noble Lords will instantly recognise that that language is taken from Article 9 of the Bill of Rights Act of 1689, and, as such, it may have some reverberance. If these words were incorporated, I suppose that the House of Commons would, in the politest possible way, be saying to the judges, “Do not consider advancing your tanks on to our lawn”. Therefore, my amendment seeks—amateurishly, I am sure—to reinforce the protection that Clause 2(3) already seeks to provide for parliamentary privilege.

I have tabled the amendment because the Clerk of the House of Commons, having examined the Bill as drafted—and we should surely take his view very seriously—considers that parliamentary privilege would be jeopardised by it. He wrote a memorandum to the Political and Constitutional Reform Committee of the House of Commons last August and, if I may, I shall quote some sentences from it. He said:

“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 … The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates”.

Then he said that the provisions of Clause 2(2),

“make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts”.

The Clerk of the House of Commons said that he was not satisfied with the protection that the Bill as drafted provides:

“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 ... 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”.

He continued by saying that history provides,

“no basis for concluding that the courts will keep out of this new statutory territory”.

He explained that the,

“possible areas of challenge are wide-ranging. For example, any interested party … could challenge whether a motion for dissolution had been correctly worded or processed, whether the decision had been correctly reached and recorded”.

He thought that there could be legal challenges as to what a motion of no confidence was, as to the Speaker’s selection of amendments for debate and as to whether votes had been properly cast. In his oral evidence to the Select Committee, he observed that Erskine May contains five pages on irregularities in Divisions: mistakes in counting; the Division Bell not working; Members being locked out; Members being nodded through; and so forth.

I tabled this amendment and speak to it with some diffidence, not least in the presence of two very distinguished former Speakers of the House of Commons and a former Deputy Speaker. I am also aware that noble Lords learned in constitutional law, distinguished academic witnesses in their evidence to the Constitution Select Committee of your Lordships’ House and the Constitution Committee itself all expressed themselves as being reasonably sure that there will be no significant practical risk that the courts will abandon their centuries-old recognition and acceptance of Parliament’s exclusive cognisance of its internal proceedings. The Constitution Committee concluded:

“The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

Tempting though it is to rest on that comforting conclusion, I suggest that this Committee should at least pause and think about what the Clerk has said. No one except Mr Clegg and Mr Harper has said that this risk can be ruled out. Professor Dawn Oliver, giving evidence to the Constitution Committee, said that in her opinion it was,

“extremely unlikely that the court would entertain a challenge”,

but that,

“you can never be entirely sure what the courts will say when faced with very eloquent advocates with good arguments both ways”.

Professor Anthony Bradley, in the same session, cited Mr Justice Stephen in Bradlaugh v Gossett and Lord Roskill in the GCHQ case as underpinning his belief that the courts would not advance into this territory. However, he anticipated,

“a huge discussion about justiciability”,

and acknowledged that there could be arguments of a broader or different kind, which could not be raised in Bradlaugh v Gossett, that would have to be addressed. He did not contend that a Speaker’s certificate could not be subject in a primary way to the jurisdiction of the courts but considered that in a secondary sense the court would be very loath to apply intensive judicial review to the Speaker’s certificate. He thought that the case could come into court, although he thought it also likely that the judges would decline to rule on it. He noted that aspects of self-regulation have been taken away from the House of Commons, such as, for example, election petitions, expenses and allowances. All in all, his testimony was less than entirely reassuring.

Mr Richard Gordon QC, in written evidence to the Constitution Committee also argued:

“It would … be unwise to assume that there are no circumstances in which the validity of a conclusive evidence clause could be questioned in the courts … At the level of international judicial adjudication … it is highly questionable whether an assertion of parliamentary privilege (by reference to Article 9 of the Bill of Rights Act 1689) would necessarily operate to prevent parliamentary materials from being scrutinised”.

He concluded by saying that,

“it may well be that the practical scope for the scope of Article 9 being affected by judicial enquiry into the validity of a certificate is small”,

but he thought that it ought to be taken into account.

David Howarth, reader in law at Cambridge, former Liberal Democrat Member of Parliament and proposer of the Fixed Term Parliaments Bill 2007—a believer in fixed-term Parliaments—said in evidence:

“The statutory escape mechanisms create a risk that the courts will intervene”.

He elaborated by saying:

“The Bill tries to prevent legal challenge by making the Speaker’s certificate ‘conclusive for all purposes’. But a court that wanted to side-step that provision could easily do so by use of the Anisminic manoeuvre, that is by saying that legal error by the Speaker has resulted in a situation in which the Speaker had not issued a ‘certificate’ under the Act”.

Again, he also said,

“The risk is admittedly small”.

I am not a lawyer, but it seems to me that the constitution is not static. It evolves to meet new circumstances. Among the relevant new circumstances are the growing boldness of citizens to sue for their rights and the growing boldness of judges, in judicial review and in interpreting human rights, to venture into political roles where they would have stood back in the past.

Here it is interesting to note some remarks of the noble and learned Lords, Lord Steyn and Lord Hope, in Jackson v HM Attorney-General 2005. I understand that that case concerned the legality of the Hunting Act and whether the Parliament Acts impose judicially enforceable constraints on how Parliament may legislate. The basic argument was whether the notion that Parliament can make or unmake any law requires the presence of enforceable rules for defining what a law is, in which case the court could presumably disallow something that purported to be a money Act but which had not passed through a proper certification procedure—a thought relevant to a Bill that introduces a certification procedure avowedly based on that—or whether, on the other hand, an assertion by Parliament that something is a piece of legislation is decisive in the matter.

I shall briefly quote remarks from the two learned judges. The noble and learned Lord, Lord Steyn, said:

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.

The noble and learned Lord, Lord Hope of Craighead, said:

“But Parliamentary sovereignty is no longer, if it ever was, absolute ... Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”

The noble and learned Lord, Lord Bingham, did not see eye to eye with his learned friends on these issues.

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[Lord Wallace of Tankerness]

My Lords, I accept the offer of the noble Lord—and perhaps of the noble Baroness—to discuss this. I am more than willing to do so. However, as my noble friend Lord Tyler mentioned, certificates in relation to finance matters under the Parliament Act have never in 100 years been subject to challenge. The noble Lord, Lord Martin, says that they are different; they are certifications; they are certificates that are issued.

Regarding the other points made by the noble Lord, Lord Howarth, that were alluded to by the noble Baroness, Lady Boothroyd, in the Anisminic case in the 1960s the courts were able to review determinations of the Foreign Compensation Commission, even though those determinations were, by statute, not to be called into question in any court of law. However, in those cases, the starting point was that, but for the ouster clause in the statute, the courts would have had jurisdiction. The courts were thus looking for clear words to exclude an otherwise existing jurisdiction.

The facts of this circumstance are different, because the courts do not have jurisdiction over internal parliamentary proceedings. The fact that the subject matter of the certificate relates to internal parliamentary proceedings that are off limits to the courts means that there will be no motivation for courts to interpret the provisions that provide that Speaker’s certificates are conclusive narrowly.

In the other case which the noble Lord mentioned, regarding Jackson v Attorney-General, two issues have perhaps been conflated. Perhaps that is where confusion has arisen. The issues were, first, whether courts can inquire into the validity of Acts of Parliament; and, secondly, whether courts can inquire into internal parliamentary proceedings. On that second issue, the House of Lords, in its judicial capacity, asserted a view that is complete orthodoxy: that the Commons Speaker had certified that the internal proceedings of Parliament leading to the Hunting Act being passed had been complied with. The House of Lords in its judicial capacity did not look behind the Speaker’s certificate and did not question the internal proceedings of Parliament. It indicated that it would not and could not look at the internal proceedings adopted in Parliament in enacting the Hunting Act 2004.

The noble Baroness, Lady Boothroyd, referred to the European position and mentioned the case involving Sinn Fein and Martin McGuinness. Interestingly, in the Northern Ireland High Court, it was held that the matter was not justiciable on the grounds that it fell within the exclusive cognisance of the House. It is accepted that Article 9 of the Bill of Rights does not apply to the European Court of Justice or the European Court of Human Rights. However, a case will be brought before such courts only where EU law or convention rights are engaged, respectively. The subject matter of the Bill is not in any way related to EU law. Likewise, the functions of the Commons Speaker under the Bill do not engage any convention rights. In support of this point, the Joint Committee on Human Rights has reported that the Bill did not need to be brought to the attention of either House on human rights grounds.

I should add that in the case of A v United Kingdom in 2003, the European Court of Human Rights held that Article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. While noble Lords have raised a legitimate point, it leads to the view that the noble and learned Lord, Lord Falconer, has expressed today and at Second Reading, that a Speaker’s certificate would not be challengeable in the courts. I agree with that analysis and it is no disrespect to the Clerk of the House to state that, although he advanced a different argument. The weight of evidence given to your Lordships’ Constitution Committee was such that it, too, thought that the weight of evidence was that it was highly unlikely that the certificates would be justiciable.

Important distinctions are to be made between that issue and the other concerns that have been expressed about bringing the Speaker into some political role. We have an opportunity to debate these matters further, but, in the light of my comments, I hope that the noble Lord, Lord Howarth, who I once again thank for introducing this important debate, will withdraw his amendment.

[Lord Howarth of Newport]

My Lords, this has been an outstandingly important debate about an outstandingly important subject. I hope that Ministers will study it and think very carefully about the advice that noble Lords have offered. In particular, Ministers should study the speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn—two former Speakers of the House who have a wisdom to offer that the Government should certainly heed with the greatest care.

Mr Harper, the Minister, may care to reflect upon exactly why the noble Baroness, Lady Boothroyd, said in round terms that he is wrong. She made a very important speech and, as my noble and learned friend Lord Falconer said, it ought to make any Government stop in their tracks. She spoke about the unsuitable extension of the Speaker’s role and, in particular, the requirement of certification. We will have an opportunity to discuss that matter later this evening when we debate Amendment 50, in the name of the noble Lord, Lord Cormack, and my amendment to that, Amendment 51, which would delete the subsections that require Speaker’s certification—precisely because I share the noble Baroness’s view that this is a dangerous innovation.

The noble Lord, Lord Martin, floated the possibility that the act of certification by the Speaker may not in itself be a proceeding in Parliament. That perhaps could lead to it being all the more questionable in the courts, but, at all events, certification would relate to other events that have been proceedings in Parliament. We are still fairly deeply entangled.

The noble Baroness spoke about the problems of definition of a no-confidence motion and the scope for legal contention that could arise out of that. Both she and the noble Lord, Lord Martin, advised the House about how contentious the atmosphere would be in the House of Commons—the anger, the passion and the fury that would be raging around the rather solitary person, the Speaker, as he or she issued a certificate. The Speaker would of course be supported by the Clerk of the House, but, in the end, the Speaker would have to take this responsibility of adjudicating on the most intensely political issues that it is possible to imagine. Is it really wise to place the Speaker of the House of Commons in such a situation?

We need to pause and reflect, not least in the context of what both former Speakers described to us as the growing power and challenge of the judiciary to Parliament, and its growing willingness to engage in political issues in certain ways. That echoes the phrase used by the Clerk of the House, when he referred to a Supreme Court that has “not yet got its teeth into these matters”. If our Supreme Court has been relatively restrained, the European Court of Human Rights has not. As long ago as the case that occurred during the Speakership of the noble Baroness, Lady Boothroyd, when the European Court of Human Rights entertained the Sinn Fein case, it was already willing to venture into this territory. The Clerk of the House of Commons certainly offers no encouragement to believe that those courts, as time goes by, will become any less willing; indeed, he anticipates that they will be more so.

Both former Speakers and the noble Lord, Lord Forsyth of Drumlean, drew attention to the sheer status and standing of the advice of the Clerk of the House of Commons, supported by his fellow Clerks and by other legal counsellors. This is very serious and authoritative constitutional advice. Whether or not it was brushed aside, it must be given the most serious regard. I do not for a moment suggest that the Constitution Committee did not give it that most serious consideration, but I suggest that it is also for this Committee—for the whole House—equally to ponder carefully the advice he gave.