here - United Kingdom Parliament

845 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 846
That should be obvious. We know that Crown
prerogative, as exercised by the Prime Minister, is subject
to judicial review. We know that statute is subject to
judicial review. We know that proceedings in the House
and Standing Orders have not hitherto been subject to
judicial review or judicial question. The Bill provides a
connection between what happens in the House and in
the rest of the world. We are providing a bridge of law
that brings the courts into the House.
Tristram Hunt (Stoke-on-Trent Central) (Lab): Does
the hon. Gentleman think, therefore, that the amendment
goes far enough? The solution, as the Clerk of the
House sees it, is for the Speaker’s certificate to be
provided for not in statute but under a Standing Order,
which would prevent the courts from interfering in the
proceedings of the House.
Mr Jenkin: The hon. Gentleman makes an extremely
important point, to which I shall return. The entire Bill
could be dealt with through Standing Orders. The only
reason we have a Bill is either that a Bill is favoured by
those who want to move towards a written constitution—I
do not remember that being in anybody’s manifesto—
Chris Bryant: Ours.
Mr Jenkin: There we are. Perhaps that is why the
Opposition support the Bill. We have just had a Division
in which 400 right hon. and hon. Members were in the
No Lobby and only a handful of us in the Aye Lobby.
That underlines the curious consensus in favour of
certain principles of the Bill. I do not think either of the
elected parties in the coalition was in favour of a written
constitution—[Interruption.] That is two parties, but
the one that won the election certainly did not—
Chris Bryant: To clarify, I think the Liberal Democrats
were in favour of a written constitution, and we were in
favour of looking at a written constitution.
Mr Jenkin: I do not remember that being a great issue
in the general election, but we are, in effect, creating one
of the standard features of a written constitution, thereby
tempting the courts to start interfering in the internal
workings of the House.
Mr Harper: For the avoidance of doubt, the
Government’s position is that they are not in favour of
moving to what is more accurately said to be a codified
constitution. Many of our constitutional principles are,
of course, written down, just not in one document. It is
not the Government’s position to do so. I hope that
cheers my hon. Friend up.
Mr Jenkin: I am grateful for that assurance. The
Minister, who in all these debates has shown impeccable
manners and tact despite the pressure he is under,
should be looking for an alternative way of delivering
this part of the coalition agreement, to which the hon.
Member for Stoke-on-Trent Central (Tristram Hunt)
alluded.
The Speaker’s decisions will be taken under immense
political pressure, as he decides what constitutes a confidence
motion, what amendments might be tabled to amend a
confidence motion, whether, if carried, that would invalidate
the motion, whether the amendment could constitute a
motion of confidence, and the consequences of
amendments being carried or the motion being carried.
I quote again from the Clerk’s memorandum:
“As these would become justiciable questions, the courts could
be drawn into matters of acute political controversy.”
I respect the fact that many in the House think we
should have a Supreme Court like the European Court
of Justice in the European Union or the Supreme Court
of the United States, which is essentially a political
court, but that is a very big constitutional change. We
ought to have a royal commission about it, there ought
to be debates on the Adjournment about it and the
implications of drawing the courts into politics, if that
is what we are going to do, ought to be properly
explored. The way in which the Supreme Court is
appointed to make it accountable for its political judgments
is another important question.
We are importing continental and American-style
jurisprudence into our judicial decision making. Some
judges are becoming more and more adventurous about
how they interpret statute and where they feel entitled
to make judicial interpretations, and the Bill invites
them to decide when there might be a general election
under particular circumstances.
Jesse Norman (Hereford and South Herefordshire)
(Con): Will my hon. Friend distinguish between two
things: judicial activism, where there is extraordinarily
little evidence that judges in this country are overreaching,
although the same is not necessarily true in Europe and
in the European Court, and impingement on the
prerogatives of Parliaments, which is what the Bill
covers? We should be focusing on the latter point.
2pm
Mr Jenkin: I am perfectly prepared to accept that
point. I refer to judicial activism only because there are
champions of judicial activism who would like the
courts to be more judicially activist. The Bill creates
circumstances whereby we tempt judicial activism, which
is contrary to our legal traditions. It increases the
danger of the Government’s assurances simply not being
delivered, or of their not being able to make these
assurances with any confidence.
The Clerk, in his memorandum, specifically says:
“In the case of Clause 2(3) it would be for the court to
determine whether a document issued by the Speaker was a
‘certificate’ for the purposes of that clause. It is not impossible for
a court to take the view that what appeared to be a certificate was
not a ‘certificate’”.
The memorandum has been considered by the Select
Committee, which attempted, in the short time available,
to conduct pre-legislative scrutiny. It reached two principal
conclusions. Paragraph 8 states:
“The Government needs to respond to the concerns expressed
by the Clerk of the House of Commons about the potential
impact of clause 2 of the Bill on parliamentary privilege.
Paragraph 9 states:
“The purpose of the Bill needs to be achieved without inviting
the courts to question aspects of the House’s own procedures or
the actions of the Speaker, except where this is absolutely unavoidable
and clearly justifiable.”
The qualification reflects the fact that on the Committee
there was some disagreement about the seriousness of
the threat and between those who are in favour of a
written constitution and those who are in favour not of
a written constitution but of the settlement that relies
upon our immunity.