Fixed-term Parliaments Bill

I wish to speak in favour of the amendment. First, may I congratulate my hon. Friend and neighbour the Minister on the very calm and effective way in which he has steered this legislation through the House? None the less, it seems to me that a basic issue with the legislation remains unresolved. It has been described in this House as a matter of parliamentary privilege, but in fact it concerns the fundamental principle of parliamentary sovereignty. One thinks of the magisterial words of A.V. Dicey:"““The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined””—" by which he means the King or Queen in Parliament, rather than just Parliament itself—"““has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.””" That is the cardinal principle at issue today. It is worth saying that our parliamentary sovereignty remains intact in principle. It remains open to this House to repeal, if it so wished, the Act of Settlement 1701 by simple majority. The sovereignty of Parliament can thus be deliberately limited in its effects by this House—for 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. 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.