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853 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 854
example, by treaty—but it should not be limited by
accident, by inadvertence or by over-confidence. There
is a risk—a small risk—that this will happen under
these provisions.
The Clerk of the House has advised in writing and in
testimony that to include parliamentary voting procedure
in statute would risk judicial scrutiny of the proceedings
of this House, and possible legal challenge. It is important
to note that this is not merely the view of the Clerk of
the House, but also the view of Speaker’s Counsel, and
it has legal authority behind it. That is simply because
the functions described under the clause are statutory
functions, and it would therefore be for the courts to
determine whether those functions are lawfully exercised.
That is, of course, advice rendered to the House, not to
the Government.
2.30 pm
This issue was rightly taken up by the Political and
Constitutional Reform Committee in its report on the
Bill. In response, the Government relied on expert witnesses
to show that the Bill would avoid unwarranted legal
challenge. As has been discussed, the Clerk recommended
a way past the problem, which was that the procedure
should be written into Standing Orders, but that was
rejected by the Government. In my judgment, it is
perfectly legitimate for the Government, after due
consideration and on legal advice, to insist on their
preferred approach of including the relevant procedures
in the legislation, rather than in Standing Orders.
Nevertheless, we are discussing a separate issue—related,
but separate.
I believe that the Government would be well advised
to accept the amendment for three reasons. First, as
with all legal issues, this issue is not absolutely clear; it
does not admit of certainty. The Government have
relied on expert advice, but when Dawn Oliver and
Anthony Bradley gave testimony to the Political and
Constitutional Reform Committee, both experts
acknowledged the small but clear risk of judicial challenge.
They stated that precedent and statute are being relied
on that may themselves require new legislative support.
As has been noted today, that risk would be magnified
by the heat and time pressure of an election.
I would like to correct something that I said earlier to
the Committee with reference to Harold Lever, by quoting
from the evidence of the Clerk of the House before the
Political and Constitutional Reform Committee:
“I won’t bore the Committee with too many precedents, but I
couldn’t resist this one. This is from 1974 and it’s to do with the
passage of the Trade Union and Labour Relations Bill. I will read
a very short extract from the Journal of that year. ‘Mr Harold
Lever, Member for Manchester Central, acquainted the House,
That in the Divisions on Amendments…to the Trade Union and
Labour Relations Bill…he was recorded as having voted with the
Noes, but he had to inform the House that he was not within the
Precincts of the House at the time of those Divisions and that in
consequence his vote ought not to have been so recorded.’”
The Clerk continued:
“In this case, when Mr Lever came to the House and acquainted
the House about his absence, the whole procedure was declared
null and void, including the Third Reading of the Bill. The Bill
had to be called back from the House of Lords and the whole
process had to happen again.”
He concluded:
“I don’t think I need labour the point of what this would mean
in terms of a no confidence vote.”
Secondly, I think that the Government should accept
the amendment because there is a clear trend of more
public decisions falling under the scrutiny of the courts.
I do not think that that is currently happening in
domestic law, and in my view fears over judicial activism
are misplaced. Nevertheless, we now have an independent
Supreme Court that might not always exercise the restraint
and care that has been shown by the present generation
of judges in acknowledging and preserving the principle
of parliamentary sovereignty.
The European Courts are taking a greater interest in
domestic matters. The European Court of Human Rights
has heard at least one case that the British courts would
not consider on the grounds that it fell under parliamentary
jurisdiction. European judges have expressed concern
over the lack of remedies against the exercise of
parliamentary privilege.
Mr Jenkin: My hon. Friend is making an extremely
important point about the European Court of Human
Rights. As soon as something gets into the Court, it
respects no immunities whatsoever—nor does the European
Court of Justice, but that is not adverted to in this case.
Once a case is in that system, we do not know where it
will lead. The European Court of Human Rights certainly
would not respect the limitations of the 1689 Act.
Jesse Norman: I do not wish to comment on the
procedure or intention of the European Courts, but I
note merely that it is true historically that their scrutiny
has extended itself over time. It is noted less than it
should be that European judges have expressed concern
about the exercise of parliamentary privilege and about
the lack of remedies that people possess against its
exercise.
The final reason why the Government should look
again at the amendment is that the consequences of a
mistake could be momentous. In the short term, a
dissolution of Parliament and thereby an election could
hang on it. In the longer term, there could be wider
political and constitutional implications of judicial scrutiny
of our power.
The amendment is simply worded, it offers an additional
layer of protection for Parliament against a serious
threat, and it does so at little or no additional cost. I
urge the Minister to give it serious consideration.
Tristram Hunt: I, too, shall speak to amendment 6,
which would take us some way in the direction in which
we should be heading to protect this place from the
actions of the courts.
Every day, as the hon. Member for Harwich and
North Essex (Mr Jenkin) said, we see growing evidence
of interference by and elements of activism in the
courts. We now have the Supreme Court in Parliament
square, and large buildings tend to have large consequences.
The emeritus professor of public administration at
University college London, Professor Gavin Drewry,
has recorded a major shift towards cases of public law,
with some high-profile cases having a constitutional air:
“The establishment of the Supreme Court is an important
constitutional landmark, and it would be surprising if the Court
itself were to stand completely aside from the ongoing process of
constitutional development.”
There is a strong sense of certainty that the Supreme
Court will be involved.