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863 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 864 [Mr Cox] that we are considering whether the courts would or would not be able to enter this territory will induce litigants, lobby groups and political groups to bring these very applications before the courts to test out the territory. It will not be long before the courts start to consider the extent to which the Bill allows them in, and the extent to which it does not. That is where the hon. Gentleman of whose constituency I am shamefully ignorant— Chris Bryant: Stoke-on-Trent. Mr Cox: The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted the recent judgment of Lord Phillips, and that is important because Lord Phillips made it plain that the courts will reserve the power to define the parameters of parliamentary prerogative and privilege. If the Bill remains enacted in the law of this country for a long period, which I rather doubt, there will inevitably be a point at which the courts are invited in and at which they will start to examine the extent to which they can and cannot become involved. Their view might not entirely coincide with that of the Government. For example, the question of whether a certificate is valid might arise. The Bill states: “A certificate under this section is conclusive for all purposes.” A court might well feel entitled to consider whether, as a matter of law, it is in fact a certificate. In the past, that is the way in which ouster clauses have been outflanked. I am asking the Minister to consider this matter, and I am asking from the heart. I have noticed that, from time to time, he has found many of the interventions by Members not altogether to his taste. Perhaps the smile of the Cheshire cat is always seated on his face during these debates simply because of his serene command of his brief and his sublime confidence in the merits of this legislation. However, I ask him to address the consciences of many of the Members on his own side who have deep and sincere concerns. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) is among them, and when he rises to speak on matters of the constitution, he must always be listened to with respect. He may not be a lawyer but, by Jove, his instincts on the constitution are proud and honoured by a long tradition in this House. I pay tribute to him for standing up with such integrity and for such a long time for the traditional view of the constitution in this House. It is not a bad thing to stand up for tradition. It is not wrong to honour the way in which our forefathers constructed the constitution, the wisdom of it and the value that it has conveyed down the ages to the inhabitants of this country. Will the Minister address this matter? I hope that I have expressed myself modestly by saying that I do not endorse or adopt many of the more exaggerated flights of fantasy that have occasionally been bandied about the Floor of the House. However, it surely cannot be denied that there is some risk and some legitimate cause for concern, when this matter seems to prey on the minds and the consciences of so many Members of this House who are motivated by entirely sincere reasons, rather than merely by the need to hear the sound of their own voice. I ask the Minister to address those concerns with the sincerity with which they have been expressed. Mr Harper: I am grateful for those kind words from my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox). When Mr Hoyle was in the Chair last week, he made it clear that he did not intend to have a stand part debate on this clause as we will have touched on all parts of it when debating the amendments. Before I move on to considering the amendments, it is worth putting into context the parts of the clause about which Members are concerned. I think I am right in saying that the concerns expressed about privilege and about whether the courts should intervene have almost exclusively related to clause 2(2), which deals with motions of confidence. Interestingly, the Clerk of the House, in his evidence and in conversations with me, was not concerned about subsection (2), given that it uses a perfectly well-precedented certification procedure. His concern—I think I explain it accurately—was with subsection (1), which covers the certification of an early general election, rather than with the certification procedure in principle. His concern was with the nature of the procedure that had to take place before the Speaker certified. In other words, not only would the House have had to pass a motion on a Division, but a particular number of Members would have had to vote. 3.15 pm Members expressed concern about motions of no confidence and the extent to which courts would want to interfere in them, but the Clerk of the House was exclusively concerned about clause 2(1), which deals with the House voting on a motion for an early general election, because of the two-thirds majority. Mr Jenkin: At the risk of repeating what I have already read out from the Speaker’s memorandum, I want to ensure that we are not speaking at cross-purposes. In paragraph 16 of the Committee’s report, the Clerk makes it very clear, in discussing clause 2(2), that “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.” I do not think that the Clerk could have been clearer: it is subsection (2) that he is concerned about. Mr Harper: I had a conversation with the Clerk about the certification, with the majority being specified. The Government decided to place the provisions on the early general election in statute rather than relying on Standing Orders because, as I stated in the memorandum I placed in the Library on 13 September, we cannot achieve the policy objective by relying on Standing Orders, which can be changed by a simple majority— Mr Jenkin: That is not true. Mr Harper: Let me just finish this point, then I will take an intervention from my hon. Friend. Standing Orders can be changed by a simple majority. The Government’s view was that, if that was the case, the power to dissolve Parliament early would effectively be left with the Prime Minister. Mr Jenkin: I beg to suggest that, if the Minister had listened carefully to what I said earlier, he would have heard me reading from a letter I had received from
865 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 866 Mr Robert Rogers, who made it absolutely clear that it is possible to entrench a Standing Order of this House with its own super-majority. I am astonished that the Government do not understand that, and that the whole basis of this Bill seems to rest once more on the denial of advice given by the Clerks of the House. Mr Harper: My hon. Friend cited in the letter from Robert Rogers a reference to existing Standing Orders, which require a particular majority for an event to take place. I think he mentioned the requirement for 100 Members to vote for a closure motion. There is no precedent for a Standing Order, passed by a simple majority, to entrench itself and require that it cannot be changed, other than by a vote of this House on a different majority. The Government know of no precedent for that, and no Member has given an example of one. If a Standing Order provided that an early general election could be held only after a vote with the specified majority, and if that Standing Order could be changed by a simple majority vote in the House, it would be open to the governing party, at the behest of the Prime Minister, to change the Standing Order and to trigger an early election based on the whim of the Executive. That is exactly what we are trying to remove under the Bill. The Government believe that if the policy objective is to be achieved, the procedure must be specified in statute. Mr Shepherd: If that is so—and I accept it as such—why does it not apply to the statute itself? Mr Harper: I think we have touched on that before. Once the Bill becomes an Act of Parliament, it cannot be changed purely by a majority vote in the House of Commons. The decision would have to be made by Parliament, which would also engage the other place, in which the Government do not have a majority. Even after—[Interruption.] I anticipated that reaction. Even after the appointment of the new list of working peers, the governing parties together will have only 40% of the peers in the upper House; 60% will be Labour peers, Cross Benchers or Lords Spiritual. The fact that this will be an Act of Parliament makes it impossible for a majority vote of a governing party to bring about an early general election, which is our policy objective. Chris Bryant: The Minister is right in saying that the main difference is that the matter would have to be dealt with in the second Chamber. As I understand it, however, the coalition agreement states clearly that the Government’s aspiration is to create enough peers to meet the proportions formed by each of the parties in the general election. That would provide a majority of 56%—quite apart from the fact that, as far as I can see, virtually every remaining Liberal Democrat Member in the country will be a member of the Second Chamber. Mr Harper: I will not dwell on this issue at length, Mr Evans, because if I did so you would rule me out of order, but the coalition agreement does not say that. It says that we want to make the upper House more representative of the result in the general election, not exactly in line with it. The hon. Gentleman simply is not right. The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted from a judgment. I will not be drawn into the specifics of the Chaytor case—although the Supreme Court has given its judgment, there are ongoing criminal trials—but the flaw in the hon. Gentleman’s argument lies in the fact that the case concerns the administration of the expenses scheme. The House of Commons has never asserted exclusive cognisance of the expenses scheme. It has never said that the scheme, its administration and the matters that flow from it are parliamentary proceedings, which is why that is not a good example. Moreover, the Supreme Court’s judgment recognises the exclusive right of each House of Parliament to manage its own affairs without interference from the other, or from outside Parliament. My hon. Friend the Member for Harwich and North Essex quoted the views of the Clerk of the House. If the Government were alone in their view and the Clerk’s views were shared by everyone else, my hon. Friend would have a stronger case. The Political and Constitutional Reform Committee and the Lords Constitution Committee have taken a great deal of evidence, and the weight of independent expert evidence has supported the Government’s view. For example, Professor Robert Blackburn of King’s college London said—and I think that this is in line with the comments of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox)— “In my view, the government’s Fixed-Term Parliaments Bill has been technically well-drafted by the Cabinet Office’s parliamentary counsel, particularly in avoiding judicial review of its provisions on early elections by way of Speaker’s certificates”. The hon. Member for Nottingham North (Mr Allen), the Chairman of the Political and Constitutional Reform Committee, said: “In the very limited time that we had to look at this matter, the Clerk was the only person to raise this question, and the academics who have been referred to—Professor Hazell, Professor Blackburn and others—completely disagreed with the view put forward by the Clerk.”—[Official Report, 13 September 2010; Vol. 515, c. 632-3.] Tristram Hunt: The point was that we did not have enough time to hear other voices that might have agreed with the Clerk of the House, owing to our having to rush our consideration of the Bill and to the speed with which the Government are pushing it through. Mr Harper: That was also the experience of the Lords Constitution Committee—and, in fact, we have not been rushing the consideration of this Bill. We published it in July, Second Reading was in September, and this is the third day of the Committee stage, in December. We are hardly rushing forward at an enormously swift pace. Months have elapsed. I feel sure that if hundreds of constitutional lawyers and academics agreed with the Clerk and disagreed with the Government, we would have heard from them. Mr Andrew Turner (Isle of Wight) (Con): Does my hon. Friend understand that the Committee had to rush through its work on this Bill and the Parliamentary Voting System and Constituencies Bill at the same time? Mr Harper: I am prepared to accept that consideration of the Parliamentary Voting System and Constituencies Bill has been proceeding faster than consideration of this Bill, but I cannot accept that this Bill is being considered at a great pace. It was published five months ago, we have reached only the third day of the Committee stage, and the Report stage is still to come. I believe that
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