Fixed-term Parliaments Bill

Mark Durkan Excerpts

Wednesday 1st December 2010 Commons Chamber

[Mr Harper]

There are two issues there. I will not dwell on the money Bill issue to any great extent, because if I were to do so you would rule me out of order, Ms Primarolo, but I have read the account of the debate in the other place to which the hon. Gentleman refers and the other place is not challenging the Speaker’s ability to rule on whether a Bill is a money Bill. It is simply disagreeing with the consequences of that, and arguing that if something is a money Bill it is perfectly appropriate for the upper House to debate it in Committee and pass amendments to it, recognising that legally those amendments will have no effect if the House of Commons chooses not to take them into account. The upper House is therefore not challenging the Speaker’s right to make that decision.

The hon. Gentleman is also not right to say that this is about the Speaker deciding, effectively, whether to bring down the Government. That would be a decision for the House. The Speaker would have to make a decision about certifying something as a vote of confidence. As we debated last week, it would be extraordinary if the House were debating a motion of confidence—which the Speaker would certify as such—with everybody remaining in ignorance of the fact that it was a motion of no confidence in the Government. I simply do not think that would happen. Everyone would be very well aware of the fact that it was a motion of confidence—that it had that import to it. It would be for the House to vote on the matter, and the Speaker would then certify in a way that means the decision is outside the ambit of the courts.

[Mark Durkan (Foyle) (SDLP)]

As the Minister just appeared to touch on, under the Bill the Speaker issues the certificate only after the vote has taken place, not before. Therefore, would not the Labour amendment that specifies what is and what is not a vote of confidence be much better in everybody’s terms?

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[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.

[Mark Durkan]

Is the hon. Gentleman satisfied that either the Bill or amendment 6 would protect against judicial intervention on the ground of failure to issue a certificate—a controversy that could easily arise, particularly in the light of provisions in respect of a motion of no confidence? The certificate issues only after the 14-day period has been allowed—it does not issue at the time of the debate or just after the vote, but later on—and there could be controversy about the failure to issue a certificate or about whether a certificate could be issued. Someone might try to bring that to the court.

[Mr Jenkin]

The hon. Gentleman is absolutely right. The amendment, as drafted by my hon. Friend the Member for Stone, deals with only one aspect of the matter, and, given our limited time to scrutinise this enormously important Bill, I explicitly invite the other place to look carefully at all the aspects and the advice of the Clerk. One of its own Committees is considering the matter and might well come up with different conclusions from those of the Commons Political and Constitutional Reform Committee. The Lords sorted out the IPSA Bill, under which they kept our proceedings immune from the courts, and I very much hope that they will do the same with this Bill.

My concluding point is a general one about the Bill but is relevant to the amendment. I do not think that I can recall a major constitutional measure that was so closely associated with the survival of one Administration. We have to pinch ourselves when we think of what we are doing in reality: we are completely changing our constitutional settlement at the behest of a coalition, so that it can remain in power for five years. I do not even think that that is ethical. Parliament’s immunity is basically being screwed up, and, although a Bill can at least be repealed, once the courts have been allowed into our proceedings, we will never get them out again without a major break in the constitution such as in 1689.

All that can be forestalled if the Minister simply says, “These matters cannot be resolved today,” because they cannot be resolved on the basis of parliamentary counsel’s advice to Ministers about the drafting of Bills. We need the other place to give the highest and most independent legal advice to ensure that we do not inadvertently bring about what the Government themselves do not want to see.

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[Mr Shepherd]

And formidable handicaps they often are.

The endeavour of my hon. Friend the Member for Stone and those who support the amendment was to provide some form of belt-and-braces approach. None of us is confident that it can work, because the aspirations and ambitions of several of our lords justices have given one an uncertainty as to where they are heading in the rewriting of the constitution. I am also mindful of the European Court of Human Rights. We have an inferior court that we call a Supreme Court and a superior court that we call a court of human rights, and on top of all that we have another court called the European Court of Justice. Somewhere in there I can see a demented Prime Minister making an application for unfair dismissal as a result of a vote to every one of those courts in turn, while we watch on, as though it were a Gilbert and Sullivan pantomime. I shall support the amendment.

Similarly, I will support amendment 23. The matter has to be determined quickly and appropriately, so I shall not waste the House’s time having indicated the actions that I will take.

[Mark Durkan]

Like the hon. Member for Aldridge-Brownhills (Mr Shepherd), I shall speak in support of amendments 6 and 23, which are both attempts to earth the Bill against some of the dangerous shocks that could be created for the House in the future. To make some of my points, I will have to refer to what the Minister said about the previous group of amendments.

In the debate on the previous group, the Minister said that he could think of no circumstances in which a debate on a motion of no confidence would take place without the House knowing that it was a motion of no confidence, even though the Bill requires the Speaker to issue a certificate only after a period of 14 days has elapsed—it does not specify how long after. That creates a situation that we all have to consider before we even go into the danger of what will happen when the matter goes to the courts. Let us first look at the difficulties and controversies that will be created in this House.

If a motion of no confidence can be played like a wild joker, and any motion can be converted into one, then whenever there is a controversial issue or one involving Opposition or rebel tactics, the Speaker will be asked early in a debate, “Will you signal whether you would be minded to say that this debate is certifiable? Will you declare that we are going through a potentially certifiable chain of political and constitutional events?” Of course, the Speaker might wish to say, “You are trying to draw me into a matter of controversy”, because he might not be privy to what Whips are saying to Members about the significance of a particular motion.

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[Mr Charles Walker (Broxbourne) (Con)]

My children once asked me, “What does a heffalump look like?” I said, “You’ll know one when you see one.” Has that not been the case with confidence motions throughout history? The House has known one when it has seen one, and we are in danger of over-complicating the process in the Bill.

[Mark Durkan]

I have a lot of sympathy with what the hon. Gentleman says, and that was why I indicated my support for earlier amendments that would have narrowed the ambiguity and reduced the possibility of political and procedural chicanery, with which the Bill is riddled.

[Chris Bryant]

Will my hon. Friend point out to the hon. Member for Broxbourne (Mr Walker) that there is a picture of the heffalump in several of A. A. Milne’s books?

[Mark Durkan]

I accept that point fully.

[Mr Walker]

I shall admonish my children for not being better read.

[Mark Durkan]

I will acknowledge these interventions no further.

To return to the matter at hand, let us be clear that the Bill’s provisions are open to all sorts of contests, questions and controversies. As I have said, I believe that the Minister was wrong to say that the House will know in all circumstances when something is a vote of confidence. If he wanted to make that incontrovertibly so, he would need to provide either in Standing Orders or in the Bill for a formal indication by the Speaker that a certificate could be issued prior to the period set out in the Bill, which starts 14 days after a motion. That, in turn, would bring the Speaker into areas of political controversy and intervention. Amendment 6 is clearly aimed at ensuring that those difficulties do not make the issuing of a certificate, or possibly the failure to issue one, a matter of controversy that can be brought to the courts.

In discussing previous amendments, Members alluded to affairs currently in Oireachtas Éireann and in the Dail. Those affairs may be relevant this week, because an opposition party there has indicated that it might take to the courts the question whether, under the constitution, the agreement that the Irish Government have entered into has to be subject to a vote of the Dail. Let us not rule out circumstances in which a party here, possibly a party of Opposition, could feel that the Speaker had wrongly declined to issue a certificate, or that the Government were using all sorts of procedural chicanery to prevent certificates being issued and to reset the clock. That party might then feel obliged to take the matter to court if it felt that it faced dead ends and chicanery in Parliament. That is exactly the situation that was threatened in Dublin this week given what the Irish Labour party justice spokesman said. Let us not join the Minister in completely dismissing all such possibilities.

I do not want to move from Dublin to Northern Ireland affairs, but I have some experience of what happens in practice. I was involved in negotiating and implementing the Good Friday agreement, including as a Minister and Deputy First Minister. Ministers told this House that procedures would follow their own course and that political matters would not end up in the courts, but then I found that my election as Deputy First Minister was taken to court—when I was jointly elected with David Trimble—because all sorts of rules were bent and twisted and the clock was reset by Secretaries of State and others.

The Northern Ireland Act 1998 set a clear six-week period, but Secretaries of State discovered that if they suspended things for 24 hours, there would be a new six-week period. Whenever there is a facility to contrive a completely new situation and dispose of a statutory deadline, it is used—whenever Ministers are told that in case of emergency they can smash the glass, they do so. Completely contrary to the assurances and explanations given to the House when we debated the 1998 Act, a number of Secretaries of State found themselves doing that. In addition, Assembly Members redesignated to pass particular votes, even though they said that they would not, and so on.

In the context of the Bill, people have said that a Government would never put themselves in the embarrassing position of activating a vote of no confidence in themselves or cutting corners, ignoring rules or resetting clocks so that they can bypass dates and deadlines, but the Northern Ireland experience shows that that is not so. The exigencies of the moment, and the demands for stability and good governance, can be used as circumstantial excuses. Let us not pretend otherwise. If we are trying to provide for fixed-term Parliaments with clear, fixed and guaranteed arrangements, we must go further than the Bill does. It leaves too much power in the hands of the Prime Minister and the Executive when there has been a motion of no confidence, and in respect of their influence over the decision of whether a motion is one of no confidence or otherwise.

I therefore ask the Minister to acknowledge that there are shortcomings in the Bill. Some of the amendments have their own shortcomings, but they do not diminish the serious problems with the Bill. If he will not accept amendments 6 and 23, will he agree to work in another place and in the House at another time to make his own amendments, so that the Bill does not create those difficulties and controversies?

Under the Bill, the Speaker could be the subject of controversy. What if there are differences between the Speaker and Deputy Speakers on the question whether to indicate in advance that a motion is certifiable? More importantly, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, I believe that such matters could find themselves before a court, not only because somebody might want to contest the fact or content of a certificate, but more importantly because people might want to contest the failure to issue a certificate or the fairly questionable proceedings in advance of it. We do not want the Speaker of the House of Commons to be caught in the same position as Scottish football referees. They have been accused of taking and changing decisions in relation to subsequent arguments and events. Let us protect the office of the Speaker and this House.

[Mr Robert Buckland (South Swindon) (Con)]

I rise to make a brief contribution. I have listened with great interest to the debate and I await with even greater interest the Minister’s response to the very well advocated position on amendment 6, with which I have great sympathy.

It seems blindingly simple to me. Clause 2(3) stops at the words, “for all purposes.” The comparison with section 3 of the Parliament Act 1911 has been made, so why not include the extra words,

“and shall not be questioned in any court of law”?

The amendment proposes the use of the word “whatsoever”, which was no doubt an attempt by my hon. Friend the. Member for Stone (Mr Cash) to deal with the European question—that is perfectly legitimate and I understand entirely the reason for his wording—but the point is the same: if such a provision was good in 1911, why is it not good now? If anything, the balance between Parliament and the courts has deteriorated, as the hon. Member for Stoke-on-Trent Central (Tristram Hunt) eloquently outlined. The balance is now extremely fine, and it is in danger of being overturned in favour of judicial activism.

It may well be that reliance will be placed upon the residual powers of article 9 of the Bill of Rights, but as an Act of Parliament, that too is subject to judicial interpretation. Over the years, it has been interpreted in a variety of ways by the courts. Notably, it has been impliedly waived or restricted by this House. Section 13 of the Defamation Act 1996 is a good example of Parliament deciding, in effect, to allow its privilege to be qualified. I have strong views on the wisdom of that legislation—it was foolish and has led to unintended consequences, which are at the heart of this debate.

No Member of Parliament wants a diminution of its authority or power. This is an elected Chamber and we represent the people of this country. Sovereignty means just that. It is right that all hon. Members worry—even if it is sounds like lawyers’ caution—about any further unintended diminution of our authority. That is why I support amendment 6. Why not change clause 2(3) to put things as far beyond doubt as possible, mirroring what legislators did in 1911, to ensure that the spectre of the judiciary questioning and second-guessing the proceedings of the House does not become a reality?

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[Mr Harper]

The Committee was quite right. I agree that we need to ensure that the courts do not question those matters. In a moment I will deal with the amendments and the Government’s reason for believing that the language we have used about the well-precedented use of Speaker’s certificates prevents the courts from questioning the Act.

My hon. Friend the Member for Harwich and North Essex observed that judges were not more interventionist. I believe there is evidence that there has been more judicial activism in judicial reviews of Executive decisions, but as far as I am aware there is no evidence that the courts have become more interventionist in challenging parliamentary proceedings. Executive decisions and decisions of Parliament are quite different from each other. Although the Supreme Court has a new name, it has no greater powers than the judicial Committee of the House of Lords that it replaced. I do not think that my hon. Friend’s concerns are well judged.

My hon. Friend also referred to the European Court of Justice and the European Court of Human Rights. The European Court of Justice can deal with matters related to European Union law; nothing in the Bill would engage it. Similarly, the functions of the Speaker under the Bill do not engage any of the rights conferred by the European Court of Human Rights. I think it was only last week that the Joint Committee on Human Rights agreed with that when it said that the Bill’s provisions did not need to be brought to the attention of either House on human rights grounds.

My hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman)—who is not in the Chamber, as he has had to fulfil a long-standing and important engagement to attend a meeting elsewhere in the House—expressed concern about the European Court of Human Rights. In fact, it has shown the utmost respect for parliamentary privilege. In a 2003 case, A. v. United Kingdom, it was specifically 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. The European Court of Human Rights strongly supported the contention that courts would not become involved in these matters.

I agree with my hon. and learned Friend the Member for Torridge and West Devon, who said that owing to the very nature of these events—the fact that they would be politically highly charged—judges would not be keen to rush in and engage in questions that are rightly to be resolved by political rather than legal means. I have heard no evidence, apart from assertion, that courts would do anything different.

[Mark Durkan]

I gave the example from 2001 when, on the third attempt, David Trimble and I were jointly elected as First and Deputy First Minister by the Northern Ireland Assembly. That was taken to the courts. Yes, the courts did not touch on issues connected with the Assembly’s standing orders, but they did entertain the suggestion that the Secretary of State had failed to use the power and duty, given to him under law, to set a date for an election if no First and Deputy First Minister have been elected after six weeks. The Secretary of State did not do so, claiming that because he had notice of the potential to elect us, which had been issued by the end day of the six-week period, he could interpret the deadline differently. The court did not throw out the case and the judges—competent, serious, senior judges—divided on the issue. In the light of that precedent, the assurance of the hon. and learned Member for Torridge and West Devon (Mr Cox) does not stand.

[Mr Harper]

The hon. Gentleman makes my point for me. He accurately sets out the fact that at issue was not a proceeding in Parliament—a decision of this House—but an executive decision by the Secretary of State. As I have said, there is lots of evidence that courts will challenge Ministers’ decisions, and one can argue about whether they will be right to do so; Ministers would probably argue they are not, but everyone else would probably argue that they are. The case the hon. Gentleman raises involved an executive decision; it was not a decision of this House or a proceeding in Parliament, and it is not protected under article 9.

[Mark Durkan]

But what we are talking about is related to the closest equivalent in the Northern Ireland Act 1998 of the certificate powers being given to the Secretary of State. Sections 31 and 32 of the 1998 Act provide for the early Dissolution of the Assembly and early elections. They are the exact same powers, except that in Northern Ireland the Secretary of State has the powers of an “over-Speaker”, rather than their being vested in the Presiding Officer. They are the equivalent powers, however.

[Mr Harper]

No, I think there is a rather crucial difference. The powers in that Act are given to a Minister—they are not proceedings in Parliament. That leads me nicely on to amendment 6—