Fixed-term Parliaments Bill

I wish to speak to amendments 33 and 34. Even though I, too, am a member of the Political and Constitutional Reform Committee, I did not put my name to them. As the hon. Member for Epping Forest (Mrs Laing) suggested, they allow us to pursue the idea of exclusive cognisance, and of this place having control of its powers rather than being opened up to external powers, particularly in respect of the possibility of the courts intervening in the parliamentary process. As my hon. Friend the Member for Rhondda (Chris Bryant) said, the Clerk of the House has repeatedly warned Members that the provisions of the Bill"““impinge upon Parliamentary privilege and…may bring the Courts and Parliament into conflict””," and yet the Government seem unwilling to heed any such advice. When the Clerk of House appeared before the Political and Constitutional Reform Committee, with his usual subtlety and modesty, and we tried to press him on whether he had been consulted on the developments behind the Bill, he rather averred in his answer. The Government consider that"““this Bill would cause no such rebalancing and that the Bill will not in any way open up parliamentary proceedings to the jurisdiction of the courts.””" That is an idea that the amendments are beginning to tease out. In their reply to our Committee, the Government also said that insufficient time for pre-legislative scrutiny is a"““natural consequence of legislating at the beginning of the first term””." I am a new Member in this place, but I do not regard that as a sufficient excuse for some of the lacunae that we have seen opening up in the course of our scrutiny of this legislation. I would like briefly to point to two areas where there are potential openings for judicial intervention in the running of this place. I do not wish to speak to the Speaker's certificates now, because we will return to the specifics of that, but amendment 33 opens up the issue as a principle, because in addition to fixed electoral dates, the Bill empowers the Speaker to produce a certificate for an early general election, which would occur if the House had passed a motion of no confidence in Her Majesty's Government and, after 14 days, there had been no further motion expressing confidence. The Government are leaving it up to the Speaker to decide whether such events have occurred, but the problem is that the judgment that the Speaker makes will now be placed in statute, as a principle, but it is not an easy decision for the Speaker to make. He or she would have to adjudicate on what constitutes a confidence motion, the selection of amendments to the motion and the consequence of their being carried, all with an eye to major political ramifications. Crucially, because the certificate would be laid out in statute law, any disputes about whether the Speaker had been right to issue the certificate would have to be settled in the courts. The Speaker's certificate becomes justiciable and would therefore be declared invalid if the correct procedures had not been followed. As you know, Mr Hoyle, lawyers can interpret their way around provisions in any way they like, and particularly those stating that the Speaker's decision is final. There is a celebrated case of a compensation scheme after the Suez crisis, with its legislative provision that"““the determinations of the compensation body shall be final””." Not according to the court, which ruled that where the body had made a decision on compensation that was wrong, it was not a ““determination”” but only a ““purported determination””, and therefore the courts could still review it. So if the wrong procedures were followed, any certificate would not be a ““certificate of Dissolution”” properly so-called, only a ““purported certificate””, and would therefore not be final but would potentially be amenable to judicial review. The Government seem intent on ignoring that possibility and the numerous potential openings for legal dispute. I hate to refer to your position in depth, Mr Hoyle, but another example is the position and role of the Deputy Speakers, as laid out in subsection (4). Were the Deputy Speakers to dissent from the Speaker's view of the no-confidence motion, there would be strong grounds for questioning the basis on which the Dissolution was based. The current provision is that the Speaker must consult the Deputy Speakers ““so far as practicable””. I am sure that that would be no problem, but the notion of what is or is not practicable in the case of dissent between the Deputy Speakers would also need to be settled in a court of law. As the hon. Member for Stone (Mr Cash) and many others have pointed out, another issue would be whether all Members of the House of Commons had been present at the vote. However, no matter what the reason given, in such politically charged circumstances as those that would surround a vote of no confidence, parties are likely to seek means of challenging the Dissolution. We have also had reference to what constitutes a motion of no confidence. Is it losing a Budget or a specific motion? Amendments 33 and 34 and others hint at the expansion of judicial review and the danger it poses to this place and to the democratic process and the calling of elections. Judicial review has hugely increased the role of the courts, which now regularly pass judgments on questions that were previously non-justiciable. I suggest that it is dangerous for the Government to assert that when the Bill becomes law it could not possibly be affected by judicial review because the judges would not dare to intervene in the matters of this House. The fact of the matter is that this is uncharted territory and they cannot know for sure until it has indeed been judicially reviewed.