here - United Kingdom Parliament

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