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847 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 848
[Mr Jenkin]
On whether there are alternative ways of achieving
the Bill’s intentions without the risk of judicial interference,
the Committee noted, in paragraph 38:
“As the Committee has noted, setting out the requirement in
Standing Orders would not be satisfactory because Standing
Orders can be amended, suspended or revoked by a single simple
majority vote of the House of Commons only.”
That is not correct. I have taken further advice from the
Clerks and I have a letter from the Clerk Assistant and
Director General, Mr Robert Rogers, which, if the
Committee will indulge me, I will quote. He explains
that there is a precedent of super-majorities in Standing
Orders being used, for example, on closure motions in
the 1880s. He says:
“As to the practical issue of a “super-majority” SO being able
to be amended or repealed only by a super-majority, I see no
difficulty. The Speaker would be the arbiter of whether a
motion…either was (a) orderly and (b) had been agreed to; he
would be bound by the Standing Order (which should perhaps
contain an explicit prohibition on “notwithstanding”-type Motions),
and his decision would be beyond any external review.”
That neatly and devastatingly removes the need for the
entire Bill. We could be operating entirely through
Standing Orders, which would be protected by the
super-majority that the Government want to embed in
legislation for general elections. It leaves the question of
why the Government are resisting this advice.
Amendment 6 is a more elaborate way of saying what
the Government have already put in the Bill. I would be
the first to accept that it may be regarded as a more
elaborate bit of sticking plaster, because the clause will
be subject to judicial interpretation. A certificate could
not be presented to the courts—not even the Speaker
could present one to a court for adjudication. The word
“whatsoever” in the amendment means that we are
referring not just to our own courts, but to the European
Court of Human Rights, which is not just a figment of
some Eurosceptic’s imagination. The Clerk himself has
adverted to the fact that the ECHR, under article 10,
could be adverted to as a cause for judicial review.
If a Member of Parliament was prevented from
voting in the motion of confidence, they could say that
their vote should be taken into account for a valid
certificate to be issued by the Speaker. They could
therefore mount a challenge saying that the certificate
was not valid because they were prevented from voting.
A question also arises if sick colleagues cannot get into
the Lobby and are nodded through. Would that constitute
a ground for challenging a vote of confidence?
Jesse Norman: Was not there an example in the 1970s
of whether a Member had been able to vote? There was
a tied vote and Harold Lever, I think I am right in
saying, felt that he had not been able to exercise his
vote? He might have had grounds under this Bill, if the
Clerk is right, to invoke the care and attention of the
courts.
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.
Chris Bryant: Many thanks are due to the hon. Member
for Harwich and North Essex (Mr Jenkin), who has
done us a great favour by pointing out some of the