Fixed-term Parliaments Bill

Debate between Mark Durkan and Bernard Jenkin

Wednesday 1st December 2010 Commons Chamber

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Mark Durkan and Bernard Jenkin

Monday 18th October 2010 Commons Chamber

[Mark Durkan (Foyle) (SDLP)]

I have reservations about amendment 136. I fully understand the spirit in which the hon. Member for Rhondda (Chris Bryant) argued for it, but I have concerns about requiring the agreement of the Speaker’s committee on the Electoral Commission. Would the committee have to agree on absolutely every bit of material, therefore having some sort of editorial control, with only their imprimatur and nihil obstat determining what goes? I am not sure that it would not put the committee in a potentially invidious position—indeed, hon. Members have already asked questions about what side of the argument the committee members are on. The safeguard that the amendment is trying to achieve might turn out to be more complicated and hazardous.

I prefer amendment 136 to amendment 247, however, because the latter would basically create not a difficult position for MPs sitting on the Speaker’s Committee, but an absolute veto by one campaign on the work of the Electoral Commission and indeed on the seemly and properly informed conduct of the entire referendum. To give each campaign an outright veto would be to give it too tempting an opportunity. Some of us come from territories where we are used to vetoes lying around the place, and they do not usually stay there as unused ornaments; they end up being used deliberately, effectively and destructively.

[Mr Jenkin]

The effect of my amendment is clear. It states:

“The Electoral Commission shall not issue any explanatory documents to persons entitled to vote in the referendum”

unless agreed by both campaigns. It is very clear. It would not prevent the Electoral Commission from carrying out its other work.

[Mark Durkan]

We are being told that no explanatory documents will be issued unless they have been approved by both campaigns. It could easily be in the interest of one campaign—for instance, a campaign saying, “We probably should not even be having the referendum anyway because it is not necessary”—simply to object. In such an event, no explanatory information could be issued, and then the conduct of the referendum would be seriously and fundamentally compromised.

Some of us have experience of seeing how referendums have been conducted in other jurisdictions.

[Mr Jenkin]

The yes and no campaigns will receive considerable public funds and will have a free mailshot. Each will explain the voting systems in its own way. That is a perfectly fair way of conducting a referendum. After all, at general elections, we do not ask an authority to explain the issues of the day to the British people; we let the British people make up their minds on the basis of what the political parties send out. That is the conventional way of running a referendum.

[Mark Durkan]

I will give the example of referendums conducted in the south of Ireland. The Referendum Commission has clearly gained some experience in how to manage the dissemination of information and how to deal with the various claims that emerge from different campaigns—and it has had to do that authoritatively and effectively. There are lessons to be learned from the Irish experience about how this referendum can be conducted. I would have a difficulty with putting absolute control over the Electoral Commission’s role in the hands of either campaign.