Fixed-term Parliaments Bill

My Lords, this has been an outstandingly important debate about an outstandingly important subject. I hope that Ministers will study it and think very carefully about the advice that noble Lords have offered. In particular, Ministers should study the speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn—two former Speakers of the House who have a wisdom to offer that the Government should certainly heed with the greatest care. Mr Harper, the Minister, may care to reflect upon exactly why the noble Baroness, Lady Boothroyd, said in round terms that he is wrong. She made a very important speech and, as my noble and learned friend Lord Falconer said, it ought to make any Government stop in their tracks. She spoke about the unsuitable extension of the Speaker’s role and, in particular, the requirement of certification. We will have an opportunity to discuss that matter later this evening when we debate Amendment 50, in the name of the noble Lord, Lord Cormack, and my amendment to that, Amendment 51, which would delete the subsections that require Speaker’s certification—precisely because I share the noble Baroness’s view that this is a dangerous innovation. The noble Lord, Lord Martin, floated the possibility that the act of certification by the Speaker may not in itself be a proceeding in Parliament. That perhaps could lead to it being all the more questionable in the courts, but, at all events, certification would relate to other events that have been proceedings in Parliament. We are still fairly deeply entangled. The noble Baroness spoke about the problems of definition of a no-confidence motion and the scope for legal contention that could arise out of that. Both she and the noble Lord, Lord Martin, advised the House about how contentious the atmosphere would be in the House of Commons—the anger, the passion and the fury that would be raging around the rather solitary person, the Speaker, as he or she issued a certificate. The Speaker would of course be supported by the Clerk of the House, but, in the end, the Speaker would have to take this responsibility of adjudicating on the most intensely political issues that it is possible to imagine. Is it really wise to place the Speaker of the House of Commons in such a situation? We need to pause and reflect, not least in the context of what both former Speakers described to us as the growing power and challenge of the judiciary to Parliament, and its growing willingness to engage in political issues in certain ways. That echoes the phrase used by the Clerk of the House, when he referred to a Supreme Court that has ““not yet got its teeth into these matters””. If our Supreme Court has been relatively restrained, the European Court of Human Rights has not. As long ago as the case that occurred during the Speakership of the noble Baroness, Lady Boothroyd, when the European Court of Human Rights entertained the Sinn Fein case, it was already willing to venture into this territory. The Clerk of the House of Commons certainly offers no encouragement to believe that those courts, as time goes by, will become any less willing; indeed, he anticipates that they will be more so. Both former Speakers and the noble Lord, Lord Forsyth of Drumlean, drew attention to the sheer status and standing of the advice of the Clerk of the House of Commons, supported by his fellow Clerks and by other legal counsellors. This is very serious and authoritative constitutional advice. Whether or not it was brushed aside, it must be given the most serious regard. I do not for a moment suggest that the Constitution Committee did not give it that most serious consideration, but I suggest that it is also for this Committee—for the whole House—equally to ponder carefully the advice he gave. The noble Earl, Lord Onslow, the descendant of three Speakers, spoke with deep feeling and concern about these matters, tempting us to contemplate using the powers that remain to this House under the Parliament Act. We will all be immensely cautious about that, but he underlined the seriousness of the matter at issue. The noble Lord, Lord Williamson, in speaking of the defence of Parliament, reminded us also that there are implications for the privilege of this House as well as for the House of Commons if the courts are unable to advance further into questioning of proceedings in Parliament. The noble Lord, Lord Marks, sought to reassure us but he, too, allowed that there is a difficult judgment to be made here. What risk ought we to take, if any? I suggest that we should err on the side of great caution and continue to consider whether it may be possible to frame an amendment to increase the protection that the Bill genuinely seeks to provide for parliamentary privilege. I am the first to accept that, as I said in my opening remarks, my amateurish amendment may not achieve the purpose. Can that objective be better achieved by those who are far more competent than me in the drafting of legislation? We need to meet the concerns that have been put forward by the Clerk of the House of Commons. He is intensely concerned that the formulation that the Government have provided in the Bill is not sufficient to protect parliamentary privilege. We are left with that very serious warning and all sorts of practical problems. I acknowledge that the Government will face these if the device of the certificate is found to be wanting in the sense that it makes proceedings in Parliament vulnerable to questioning in the courts in a way that Parliament has never previously permitted, the courts have never previously wanted and we all seek to avert. The Clerk’s advice is that we do not have that protection. The Clerk considers, contrary to what the Minister said, that human rights issues could arise in the circumstances, which it would be the duty of the Speaker to certificate. They would therefore, in principle, be justiciable in the European Court of Human Rights. Against the background of all these considerations in this important debate, I do not seek to press my amendment. However, I hope that Ministers will reflect very carefully on this hugely important issue, to which we will return on Report. In the mean time, I beg leave to withdraw the amendment. Amendment 42 withdrawn. Committee to begin again not before 8.34 pm. House resumed. Moved by