Fixed-term Parliaments Bill

My Lords, after the words in Clause 2(3)— "““A certificate under this section is conclusive for all purposes””—" my Amendment 42 would add the words, "““and ought not to be impeached or questioned in any court””." Noble Lords will instantly recognise that that language is taken from Article 9 of the Bill of Rights Act of 1689, and, as such, it may have some reverberance. If these words were incorporated, I suppose that the House of Commons would, in the politest possible way, be saying to the judges, ““Do not consider advancing your tanks on to our lawn””. Therefore, my amendment seeks—amateurishly, I am sure—to reinforce the protection that Clause 2(3) already seeks to provide for parliamentary privilege. I have tabled the amendment because the Clerk of the House of Commons, having examined the Bill as drafted—and we should surely take his view very seriously—considers that parliamentary privilege would be jeopardised by it. He wrote a memorandum to the Political and Constitutional Reform Committee of the House of Commons last August and, if I may, I shall quote some sentences from it. He said: "““My concern is with the way in which provisions of the Bill impinge upon Parliamentary privilege and which may bring the Courts and Parliament into conflict … The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates””." Then he said that the provisions of Clause 2(2), "““make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts””." The Clerk of the House of Commons said that he was not satisfied with the protection that the Bill as drafted provides: "““Although the provision in 2 (3), that the Speaker’s certificate is conclusive for all purposes, is meant to mitigate challenge or questioning in the courts, it cannot be a protection against the courts interpreting statute either in the UK or in Strasbourg ... embodying these internal proceedings in statute radically changes their status since, by reason of being embodied in statute law, they become questions which are ultimately to be determined by the judiciary rather than by members of the legislature””." He continued by saying that history provides, "““no basis for concluding that the courts will keep out of this new statutory territory””." He explained that the, "““possible areas of challenge are wide-ranging. For example, any interested party … could challenge whether a motion for dissolution had been correctly worded or processed, whether the decision had been correctly reached and recorded””." He thought that there could be legal challenges as to what a motion of no confidence was, as to the Speaker’s selection of amendments for debate and as to whether votes had been properly cast. In his oral evidence to the Select Committee, he observed that Erskine May contains five pages on irregularities in Divisions: mistakes in counting; the Division Bell not working; Members being locked out; Members being nodded through; and so forth. I tabled this amendment and speak to it with some diffidence, not least in the presence of two very distinguished former Speakers of the House of Commons and a former Deputy Speaker. I am also aware that noble Lords learned in constitutional law, distinguished academic witnesses in their evidence to the Constitution Select Committee of your Lordships’ House and the Constitution Committee itself all expressed themselves as being reasonably sure that there will be no significant practical risk that the courts will abandon their centuries-old recognition and acceptance of Parliament’s exclusive cognisance of its internal proceedings. The Constitution Committee concluded: "““The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of ""any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill””." Tempting though it is to rest on that comforting conclusion, I suggest that this Committee should at least pause and think about what the Clerk has said. No one except Mr Clegg and Mr Harper has said that this risk can be ruled out. Professor Dawn Oliver, giving evidence to the Constitution Committee, said that in her opinion it was, "““extremely unlikely that the court would entertain a challenge””," but that, "““you can never be entirely sure what the courts will say when faced with very eloquent advocates with good arguments both ways””." Professor Anthony Bradley, in the same session, cited Mr Justice Stephen in Bradlaugh v Gossett and Lord Roskill in the GCHQ case as underpinning his belief that the courts would not advance into this territory. However, he anticipated, "““a huge discussion about justiciability””," and acknowledged that there could be arguments of a broader or different kind, which could not be raised in Bradlaugh v Gossett, that would have to be addressed. He did not contend that a Speaker’s certificate could not be subject in a primary way to the jurisdiction of the courts but considered that in a secondary sense the court would be very loath to apply intensive judicial review to the Speaker’s certificate. He thought that the case could come into court, although he thought it also likely that the judges would decline to rule on it. He noted that aspects of self-regulation have been taken away from the House of Commons, such as, for example, election petitions, expenses and allowances. All in all, his testimony was less than entirely reassuring. Mr Richard Gordon QC, in written evidence to the Constitution Committee also argued: "““It would … be unwise to assume that there are no circumstances in which the validity of a conclusive evidence clause could be questioned in the courts … At the level of international judicial adjudication … it is highly questionable whether an assertion of parliamentary privilege (by reference to Article 9 of the Bill of Rights Act 1689) would necessarily operate to prevent parliamentary materials from being scrutinised””." He concluded by saying that, "““it may well be that the practical scope for the scope of Article 9 being affected by judicial enquiry into the validity of a certificate is small””," but he thought that it ought to be taken into account. David Howarth, reader in law at Cambridge, former Liberal Democrat Member of Parliament and proposer of the Fixed Term Parliaments Bill 2007—a believer in fixed-term Parliaments—said in evidence: "““The statutory escape mechanisms create a risk that the courts will intervene””." He elaborated by saying: "““The Bill tries to prevent legal challenge by making the Speaker’s certificate ‘conclusive for all purposes’. But a court that wanted to side-step that provision could easily do so by use of the Anisminic manoeuvre, that is by saying that legal error by the Speaker has resulted in a situation in which the Speaker had not issued a ‘certificate’ under the Act””." Again, he also said, "““The risk is admittedly small””." I am not a lawyer, but it seems to me that the constitution is not static. It evolves to meet new circumstances. Among the relevant new circumstances are the growing boldness of citizens to sue for their rights and the growing boldness of judges, in judicial review and in interpreting human rights, to venture into political roles where they would have stood back in the past. Here it is interesting to note some remarks of the noble and learned Lords, Lord Steyn and Lord Hope in Jackson v HM Attorney-General 2005. I understand that that case concerned the legality of the Hunting Act and whether the Parliament Acts impose judicially enforceable constraints on how Parliament may legislate. The basic argument was whether the notion that Parliament can make or unmake any law requires the presence of enforceable rules for defining what a law is, in which case the court could presumably disallow something that purported to be a money Act but which had not passed through a proper certification procedure—a thought relevant to a Bill that introduces a certification procedure avowedly based on that—or whether, on the other hand, an assertion by Parliament that something is a piece of legislation is decisive in the matter. I shall briefly quote remarks from the two learned judges. The noble and learned Lord, Lord Steyn said: "““The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish””." The noble and learned Lord, Lord Hope of Craighead said: "““But Parliamentary sovereignty is no longer, if it ever was, absolute ... Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.””" The noble and learned Lord, Lord Bingham, did not see eye to eye with his learned friends on these issues. However, this is not a static scene and my fear is that appeals to traditional constitutionalism may over time fall on deaf judicial ears. The more we write new constitutional legislation and the more we encode the constitution, the more the judges will feel impelled to interpret. The more things are statutory, the less binding will be the conventions. The committee of your Lordships’ House that reported on the conventions governing the relations between the House of Commons and House of Lords—we all assented to its conclusions—was of the view that, as and when we have a statutorily created elected second Chamber, the traditional conventions will not apply as previously. It is something of a choice between laws and conventions. Mr Harper, the Minister, was remarkably assured in the note that he deposited in the House of Commons Library in September. He said: "““the Bill will not in any way open up parliamentary proceedings to the jurisdiction of the courts””." He thought that the Clerk’s memorandum, "““contains a fundamental misunderstanding about the effect of the Bill””." The suggestion that the Bill could bring parliamentary matters before the European Court of Justice and the European Court on Human Rights was, Mr Harper said, ““wholly without foundation””. He continued in somewhat contemptuous terms that the Clerk, "““appears to confuse political controversy with legal risk””." In his oral evidence to the Constitution Committee, Mr Harper was equally bullish. He said that the Speaker’s certificate was, "““a tried and trusted formulation … If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the Government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention …It would just mean that the Speaker would be making those conventions more explicit””." He spoke of a certificate as a ““mechanism””—his metaphor conveying a simple faith in the automaticity of its effect. Dr Jack, the Clerk of the House of Commons, having considered all this evidence put to both Select Committees, provided further written evidence, which is given on pages 12 and 13 of the evidence section of the Select Committee report. He did not retreat. He continued to consider that, "““incorporating the provisions of Clause 2 in the Standing Orders of the House remains the safest course””." He noted that the circumstances of Bradlaugh v Gossett in 1884 were different from the circumstances of today, for example, in respect of human rights. He was sceptical about the self-restraint of the courts and noted, "““the not infrequent need in recent years for interventions by the Speaker of the House of Commons to protect parliamentary privilege in the courts””." The Clerk of the House of Commons also noted that, "““the attitude of the European Court of Human Rights, which has heard cases that British courts would not consider on the grounds that they fell within the area of parliamentary jurisdiction””." In one such case, two judges had expressed reservations about the lack of remedies against the exercise of parliamentary privilege in the United Kingdom system. Dr Jack suggested that Parliament might be wise at least to wait for the promised draft Parliamentary Privileges Bill. Equally, Professor Bradley equally did not recant after he had read Dr Jack’s supplementary evidence. Whom should we believe? Should we believe the Minister or sundry distinguished academics? Should we rely on the assurance given by your Lordships’ Select Committee? I know that your Lordships will attach great weight to its conclusions. Or should we pay very considerable regard to what the Clerk said in his carefully considered and repeated warning? This issue is massively important for Parliament and it matters very much that we get it right. I beg to move.