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843 Fixed-term <strong>Parliament</strong>s Bill 1 DECEMBER 2010 Fixed-term <strong>Parliament</strong>s Bill 844<br />
Williams, Stephen<br />
Williamson, Gavin<br />
Willott, Jenny<br />
Wilson, Mr Rob<br />
Wilson, Sammy<br />
Wollaston, Dr Sarah<br />
Wright, Jeremy<br />
Question accordingly negatived.<br />
Wright, Simon<br />
Yeo, Mr Tim<br />
Young, rh Sir George<br />
Zahawi, Nadhim<br />
Tellers for the Noes:<br />
Mark Hunter and<br />
Mr Shailesh Vara<br />
Mr Jenkin: I beg to move amendment 6, page 2, line<br />
15, leave out subsection (3) and insert—<br />
‘(3) Any certificate of the Speaker of the House of Commons<br />
given under this section shall be conclusive for all purposes and<br />
shall not be presented to or questioned in any court of law<br />
whatsoever.’.<br />
The Second Deputy Chairman: With this it will be<br />
convenient to discuss the following:<br />
Amendment 23, page 2, line 17, at end insert—<br />
‘(4A) The Speaker shall issue a certificate under subsection (1)<br />
or (2) within 24 hours of the relevant conditions being met under<br />
subsection (1) or (2).’.<br />
Mr Jenkin: Amendment 6 stands in the name of my<br />
hon. Friend the Member for Stone (Mr Cash), who, as I<br />
mentioned earlier, is abroad on other House business as<br />
Chair of the European Scrutiny Committee.<br />
We are at a curious juncture in the Bill and, indeed, in<br />
our constitutional history. The background to the<br />
amendment is the tension, since time immemorial, between<br />
this House’s ability to function immune from judicial<br />
interference, and the courts, which periodically have<br />
sought to limit the extent to which we can continue our<br />
business unimpeded by the courts. That was, of course<br />
settled—to a degree—in the Bill of Rights in 1789—<br />
Mr Geoffrey Cox (Torridge and West Devon)<br />
(Con): 1689.<br />
Mr Jenkin: Sorry, 1689. My hon. and learned Friend<br />
will keep me up to the mark, because he is much more<br />
of a lawyer than I am.<br />
In recent years, however, the tension between the<br />
courts and the independence of this House has been<br />
thrown into relief. I remind the Committee of cases<br />
such as the one brought by Lord Rees-Mogg for judicial<br />
review of the ratification of the Maastricht treaty after<br />
this House had passed an Act of <strong>Parliament</strong>.<br />
Jacob Rees-Mogg: I would like to clarify that the<br />
judicial review case brought by my noble kinsman was<br />
not in any way to challenge what had happened in this<br />
House. It was to challenge the use by Ministers of the<br />
royal prerogative, which is why the judicial review was<br />
allowed by the courts.<br />
Mr Jenkin: I stand corrected—again. I fear that that<br />
may occur rather often during my presentation. The<br />
case relating to the Hunting Act 2004 was certainly an<br />
attempt to impede the free functioning of <strong>Parliament</strong> in<br />
its judicial function. In addition, an attempt was made<br />
to judicially review the lack of a referendum on what<br />
was then the Lisbon treaty. T<strong>here</strong> are other examples of<br />
that tension, not least over the arrest of my hon. Friend<br />
the Member for Ashford (Damian Green), and I believe<br />
that only today, in connection with another matter, are<br />
the limits of the courts being resolved.<br />
The present situation begs for something that many<br />
have recommended for some time: that this <strong>Parliament</strong><br />
should have a privilege Act to delineate clearly the<br />
immunities of <strong>Parliament</strong> in relation to the functioning<br />
of the courts, but we are in an even more tense situation<br />
because we are arranging our constitution in other<br />
areas that question the very sovereignty of the House.<br />
We now have a Supreme Court and it is widely known<br />
that many jurists who serve at various levels of the<br />
judiciary take differing views of the notions of<br />
parliamentary sovereignty and parliamentary privilege.<br />
T<strong>here</strong> was recently a case concerning the possible effective<br />
expulsion of an hon. Member as a result of a judicial<br />
decision. I do not comment on its merits as it is still sub<br />
judice. I merely advert to the fact that it represents<br />
another testing of the boundaries between the courts<br />
and <strong>Parliament</strong>.<br />
We are told not to worry—the Bill’s provisions are<br />
immune from the courts, and nobody is going to interfere<br />
in what we decide is a Speaker’s certificate, certificating<br />
a vote of no confidence that satisfies the majority.<br />
When we are blandly and bluntly told that by the<br />
Government and at the same time told by the Clerk of<br />
the House who has bravely and independently—in his<br />
constitutional capacity as an independent guardian of<br />
our constitutional arrangements—issued a memorandum,<br />
to which I shall refer later, that flatly contradicts the<br />
Government’s view, we are obliged to take the matter<br />
very seriously.<br />
I cannot think of a precedent, other than the<br />
<strong>Parliament</strong>ary Standards Bill, w<strong>here</strong> a Government flatly<br />
refused to accept the advice of the Clerk of the House<br />
on a question of the potential justiciability of legislation<br />
before the House. The Bill before us is a major change<br />
to the constitutional settlement of this country, and it is<br />
backed by people in the Government who we know<br />
favour a written constitution—an entirely different<br />
constitutional settlement. That raises the question whether<br />
the Government have got it right when they say that the<br />
Clerk’s fears are to be disregarded.<br />
With the indulgence of the Committee, I shall quote<br />
rather extensively from the memorandum submitted by<br />
the Clerk as written evidence to the Political and<br />
Constitutional Reform Committee. He states that the<br />
Bill is<br />
“to make statutory provision for matters which fall within <strong>Parliament</strong>’s<br />
exclusive cognizance and which may affect the established privileges<br />
of the House of Commons as well as upsetting the essential<br />
comity which has been established over a long period between<br />
<strong>Parliament</strong> and the Courts.”<br />
Erskine May makes it clear that “cognizance” refers to<br />
the right of both Houses<br />
“to be the sole judge of their own proceedings, and to settle—or<br />
depart from—their own codes of procedure.”<br />
The Clerk is clear in a bald statement in paragraph 12<br />
of his memorandum:<br />
“The Bill brings the internal proceedings of the House into the<br />
ambit of the Courts, albeit indirectly by the route of Speaker’s<br />
certificates.”<br />
He goes on to explain how that occurs under clause 2(2),<br />
which we have already debated. In paragraph 16 he<br />
states:<br />
“The provisions of this subsection make the Speaker’s consideration<br />
of confidence motions and the House’s practices justiciable questions<br />
for determination by the ordinary courts.”