Fixed-term Parliaments Bill

Lord Marks of Henley-on-Thames Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Cormack]

My Lords, I very much agree with what has been said so far. We will have an opportunity later to debate this clause in its entirety, and I believe that it should be replaced by something that is much more carefully and thoughtfully drawn up. To bring the Speaker into this position would be a cardinal political sin, in my view. We have heard from two former Speakers, who were clear in their advice to this House. In doing so, they were able to speak from the experience of working with the Clerk of the House that none of us can rival, and nor can any Minister in the Government.

While the Minister in charge of this Bill in another place is an extremely able and industrious young Minister, who I am sure has a glittering future ahead of him, he is not the world’s greatest constitutional expert. This Bill is deficient in many respects. It has many aspects, some of which I will touch on later, that should give any constitutional expert real cause for alarm. However, if there is one thing above anything else that is devastating in its implications, it is the politicisation of the role of Speaker. The noble Lord, Lord Howarth, has done the House a signal service in drawing specific attention to this. The House has been singularly fortunate too to be able to hear from the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, who were able to speak from very real experience. I beg the House—although of course we will not vote on this tonight—to stand firm. I very much hope that the Minister’s response will indicate that we will not need to proceed into the Content and Not Content Lobbies on this one, but if we do we should send a real signal to the other place that this is something up with which we will not put.

[Lord Marks of Henley-on-Thames]

My Lords, I rise with some diffidence in view of the speeches from the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin, and others that we have heard. First, I think we all believe that the notion that the courts should be able to interfere with the Speaker’s certificate when this Bill is enacted, if it is enacted in its present form or in something similar to it, is one that we would abhor. No one is suggesting that that is a desirable or acceptable outcome in any way.

In moving his amendment, the noble Lord, Lord Howarth, discussed the evidence before the Constitution Committee in some detail. I do not propose to rehearse that evidence. However, I would point out that Professor Bradley, an old friend with whom I would be hesitant to disagree, expressed the conclusion that the judiciary would surely accept that this was an area for political judgment which the courts were not qualified to make. That was the conclusion of your Lordships’ Constitution Committee.

This is not simply a matter of the evidence of Mr Harper, which has been dismissed in quite strong terms by others who have spoken. In the light of the careful note of the Clerk of the House of Commons, the Constitution Committee spent a great deal of time analysing all the evidence on this point. The conclusion to which it came was that the risk of judicial interference was very small. It went further in concluding that it was so small that it was not sufficient to warrant the rejection of Clause 2. The assessment of what risk might or might not be acceptable is a difficult area. I align myself with the view expressed by the majority of the legal evidence to the effect that the chances of interference by the courts would be so small as to be insignificant.

That is not to say that we can ever stop anyone bringing a misguided application. However, as Professor Bradley also pointed out, misguided applications can be dealt with quickly and given short shrift. That is what I believe and would expect to happen. The result is that in theory an initial challenge could be brought to the Speaker’s certificate. However, it is the judgment of the Constitution Committee, which I invite your Lordships’ House to accept as well founded, that that challenge would not lead anywhere—a judgment that was made in the face of, and on consideration of, the evidence of the Clerk of the House of Commons, to which a great deal of respect was given.

[Lord Forsyth of Drumlean]

My noble friend is obviously an expert in these matters. As the argument is about the degree of risk, can he explain why it is necessary to take the risk at all?

[Lord Marks of Henley-on-Thames]

My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability.

The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that,

“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

That is a general statement of the principle of parliamentary privilege.

The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words “conclusive for all purposes” and,

“shall not be questioned in any court of law”.

The phrase is “shall not”, not “ought not”. I suggest that, for a modern approach to the construction of statutes, the phrase “shall not” is much more useful than “ought not”. The House of Lords Act 1999 simply uses the provision that the certificate shall be “conclusive”. In this Bill we have the words, “conclusive for all purposes”.

Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of “ought not”, those phrases “shall be” and “shall not be”—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.

[Lord Falconer of Thoroton]

My Lords, this has been a powerful short debate. My noble friend Lord Howarth introduced the debate moderately and marshalled the material effectively. The speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, would make any Government stop in their tracks in relation to certification and the Speaker.

It is important to identify that two separate points are being made. First, no one engaged in the discussion of the Bill wants the courts to have anything whatever to do with challenging what goes on in Parliament. I speak only from the point of view of the courts, not from the point of the view of the Commons. For all the reasons given by the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, the courts would run a mile from giving any determination in relation to this. They would do so for legal reasons: first, this is a proceeding in Parliament and therefore protected by the Bill of Rights; secondly, it specifically involves a certificate given by the Speaker of the House of Commons as to a proceeding in the House of Commons; and, thirdly, the Bill states:

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

As a matter of legal drafting, it is clear that the draftsman is trying to keep out the courts as much as possible.

Equally, for all the reasons given by the two impressive ex-Speakers, the courts do not want to be in a position where they have to say, “We know you all think there is about to be an election, but Mr Justice X has just said that there is not going to be an election”. Can you imagine the situation if a Speaker of the House of Commons had said, “I know you all think that a vote on whether or not we should go to war in Iraq is a vote of no confidence, but I have decided that it is not. Therefore, even if the vote is defeated in the House of Commons, there will be no resignation of the Prime Minister and there will be no general election”. I leave it to the House to seek the views of the two ex-Speakers as to what effect on Parliament that would have.

I was struck by the evidence of Mr Harper in comparison with what the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, have said. They have given graphically their opinion of what it would be like to make these decisions. However, the chairman of the Select Committee asked Mr Harper:

“But it would presumably put pressure on the Speaker if, let us say, he did not make an announcement in advance”.

Mr Harper replied:

“I think the Speaker would want to make sure that the House was clear about the nature of the debate and the vote attached to it. I am not sure that it would put pressure on him; I think there would be an expectation that he would set out clearly the nature of the debate and vote that was to take place, the consequences of the vote and what he would do as a result, so that people were clear about it. I think there would be an expectation that that is what would happen … I don’t think it’s asking the Speaker to make decisions beyond those he should make if there is an expectation. If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention. He is not really creating any new rules. He is just making it more explicit about the effect of existing conventions that are already in place” .