Sir Bernard Jenkin
MP for Harwich and North Essex · Conservative · United Kingdom
“Despite long and historic disagreements between successive UK Governments and Israel, it has remained a steadfast ally in counter-terrorist efforts to keep our people safe in this country. We are now embarked, it seems, on a full diplomatic dispute with Israel and tit-for-tat expulsions of diplomats.”
“I would very much have liked to have discussed the medical devices questions arising from the Bill. The Minister made an incredibly short speech about that important matter. It is quite clear that these provisions are part of the covert dynamic alignment with the EU and the covert rejoin agenda being pursued by the Government.”
“I am as keen as anybody to get on with discussing the Health Bill, but this topic is too serious an opportunity to miss, given that the hon. Member for Leeds Central and Headingley (Alex Sobel) has raised such important issues. I really commend his speech and his initiative. Everybody should read it.”
“The Minister shakes her head, but she is yet to give a good reason as to why this measure is in the Bill. When we had an Adjournment debate in July with the then Minister for patient safety, the hon.”
“The chief executive of the CQC is wantonly conflicted in terms of looking after the safe space, so he cannot be the one left in charge of that function. The real point here is that we are missing the opportunity to save so much money. Governments keep having public inquiries.”
“I asked the Minister, in a letter I sent her after the debate in July, to give us the information on how much the transfer of all this would cost. Nothing has arrived. I never had a reply to the letter. Of course, the Government have changed the Minister and the new Minister for patient safety, the right hon.”
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“I am very grateful that my hon. Friend has addressed the question of privilege and lay members, and I am grateful for the Government’s measured and sensible response to this approach. However, does it not begin to advance the argument in favour of having a standards committee that is separate from a privileges committee? If there really are two functions that require lay members to be involved in one function and not the other, should we not have two separate committees, permanently? I shall discuss that in my remarks later.”
“The third motion concerns by far the most contentious matter before the House this afternoon. As Chairman of the Public Administration Committee, which is responsible for the public appointments commissioner, I can attest to the fact that what the hon. Lady is saying is absolutely correct. I do not think that Whitehall is the model of how to make public appointments, and in any case there comes a point where, even if we are bringing lay members into House, it should be this House that appoints them, not necessarily ex-civil servants who do not understand how the House works.”
“Is not the corollary of that recommendation that an MP who went on a holiday to learn how to paint watercolours would have to fill in a form and register it because that would be time spent not as an MP but doing an unpaid extracurricular activity? Why not register everything we do not do for Parliament in our spare time?”
“I agree with the point made by the hon. Member for Manchester Central (Tony Lloyd) about how we choose the lay members. The House has fallen into the habit of finding people seen to be more respectable than we are in order to resolve some of the difficulties that have arisen. Inevitably, they turn out to be former permanent secretaries, but with the greatest respect to those eminent people, they are seen as more respectable only because they have not been exposed in public life to the extent that many of us in public life have been.”
“I very much hope that one of them will be a retired judge, for example. I think that it would greatly assist the functioning of the Committee to receive more legal advice, so that it could interpret the byzantine rules and regulations and be navigated through difficult, contentious issues of evidence and fairness. After all, that is what the Committee is about. It would be very difficult to ignore the advice of a retired judge, whether he had a vote or not. Secondly, I should be interested to know how often votes take place on the Committee. Never? I see a shaking head.”
“Referring to the role of lay members on the Committee, he made it clear that he did not comment on the merits of the proposal itself, which I personally welcome, but he also said: “It is not clear to me that their participation in decision-making by voting is in fact covered by parliamentary privilege. At the very least the matter is questionable and therefore may be justiciable.” Until that matter has been comprehensively and categorically resolved, it would be sensible for the Procedure Committee to recommend that if the Standards and Privileges Committee is to have lay members, they should not be voting members. I imagine that it would be extremely hard for the Standards and Privileges Committee to ignore the advice of the lay members, particularly if they are as eminent as I hope they will be.”
“In fact, every Parliament in the world of any distinction enjoys some measure of privilege or immunity in order that those Members can do their job. The reason we had the Bill of Rights in 1689 was to enable the House to function, and we still need those privileges, that protection and those immunities. We hold those immunities not for ourselves and the protection of our own persons or private interests, and not to protect us from the criminal law if we commit criminal offences—as we have just discovered in a recent case—but so that we can advance the interests of the country freely and without fear or favour. These are the people’s privileges. I urge the Procedure Committee, as it considers this matter, to accept the advice of the Clerk of the House. Let me, for the second day on the trot, quote from a note from the Clerk.”
“Member for Rother Valley (Mr Barron), who moved the motion, gave examples of where lay members have been added to other committees. However, those are not parliamentary committees and are not, for example, subject to the question of privilege, and it is on parliamentary privilege that I wish to make three brief points. First, there are members of the judiciary and senior figures in public life who have served elsewhere in public life who are either careless of the question of parliamentary privilege or actually could not care less about parliamentary privilege. The word “privilege” carries certain overtones. At one stage before the election, it went out to the Conservative party that we should not use that word, because it would be misunderstood and seem to relate to the then Leader of the Opposition’s education.”
“I wholly agree with that point, and it fits with the one I am trying to make, which is that their perspective is necessarily a different one, owing to civil servants’ long and distinguished experience. Very often—it has to be said—Parliament will have been, throughout their careers, perhaps a matter of great frustration to them, and they might well share the feeling of many others about how poorly the House has done its jobs in various ways over the years. I do not think, therefore, that they necessarily have the right perspective—they have one perspective, but it cannot be solely the right perspective. We have to take their recommendations gratefully and humbly, but add a wider perspective to them to give them life. On the question of adding lay members to a Select Committee, the right hon.”
“I very much hope that that will be one of the Procedure Committee’s recommendations.”
“I also think that we should have a Select Committee on parliamentary privilege, separate from the Standards and Privileges Committee. As soon as a big issue arises, what happens? Following the arrest of my hon. Friend, it was immediately agreed—somewhat insultingly—that the existing Committee was not up to the job, and that much grander and more important panjandrums would have to be placed on a separate Committee to consider the issue of privileges. I think we had better recognise that the two functions are different. The fact that lay members will be involved with one aspect of the work of the Standards and Privileges Committee and not the other underlines the fact that there are two separate functions, and that they should be undertaken by two separate Committees.”
“More to the point, if we got on with the parliamentary privileges Bill that everyone agrees we need, we could put the question of privileges on a much less contentious and disputed footing. That is my third point. When will we have a parliamentary privileges Bill, so that we can resolve some of these issues? Australia has enacted such a Bill, as have other Commonwealth countries. It is time that we stopped resting on the 1689 Act, which is increasingly irrelevant in this information age whose media are so different from those of the past. Parliamentary privilege has to contend with many issues that were not conceived in those days. It is time we updated the Bill of Rights with a parliamentary privileges Act, and I hope that the Procedure Committee will consider that.”
“My hon. Friend says “Not never, but not frequently”, and I observed the right hon. Member for Rother Valley shaking his head. It would be awful if decisions were split on some of the contentious cases that we are discussing. The voting is not really relevant, and I think that it can be set aside until the question of the privileges of the House has been resolved. We keep running up against the question of privilege. The arrest of my hon. Friend the Member for Ashford (Damian Green) led to a protracted argument about it. The case relating to privilege has just been resolved—I recognise that other cases are sub judice under the criminal law, so I will not comment on them—but resolving it took months. If we had had a more watchful Privileges Committee entirely devoted to the question, we could have forestalled all that.”
“To be completely fair to IPSA, the scheme that it had to implement had already been handed to it by the Committee on Standards in Public Life, and if I remember correctly there was a curious collision of timetables, whereby IPSA was set up at the same time as the committee was holding its inquiry. I am afraid that we politicians are responsible collectively for the mess that IPSA inherited from us, and I think that my hon. Friend is appealing for it to take charge, to fulfil its remit and to take full responsibility for the scheme that it now implements.”
“Will the right hon. Gentleman comment on the fact that IPSA has said it is not going to publish invoices and evidence of payment? Does he agree that it is slightly illogical to have a system based on transparency and evidence of payment if we do not then publish the evidence of payment, and that that recalls how we got into this mess in the first place?”
“Does the Minister agree that, as with the House of Commons, IPSA is unlikely to survive a freedom of information request for evidence of payment to be produced? How can it justify withholding evidence of payment—all the invoices—on grounds of cost? That is part of the cost of the system, and it is going to have to bear it.”
“I think it would help the Committee if the Minister could cite an academic paper, some judicial text or something else that bears out this notion that Her Majesty the Queen would interfere in politics in the way he is suggesting she would. Can he quote anything?”
“I have been in touch with my hon. Friend the Member for Stone (Mr Cash), who makes things complicated because he does not text people. He is in Budapest representing the European Scrutiny Committee, but he has suggested that it would be in the interests of the scrutiny of this Bill to press the amendment to a Division, and one or two of us will attempt to do so.”
“I beg to move amendment 6, page 2, line 15, leave out subsection (3) and insert— ‘(3) Any certificate of the Speaker of the House of Commons given under this section shall be conclusive for all purposes and shall not be presented to or questioned in any court of law whatsoever.’.”
“Amendment 6 stands in the name of my hon. Friend the Member for Stone (Mr Cash), who, as I mentioned earlier, is abroad on other House business as Chair of the European Scrutiny Committee. We are at a curious juncture in the Bill and, indeed, in our constitutional history. The background to the amendment is the tension, since time immemorial, between this House’s ability to function immune from judicial interference, and the courts, which periodically have sought to limit the extent to which we can continue our business unimpeded by the courts. That was, of course settled—to a degree—in the Bill of Rights in 1789—”
“Sorry, 1689. My hon. and learned Friend will keep me up to the mark, because he is much more of a lawyer than I am. In recent years, however, the tension between the courts and the independence of this House has been thrown into relief. I remind the Committee of cases such as the one brought by Lord Rees-Mogg for judicial review of the ratification of the Maastricht treaty after this House had passed an Act of Parliament.”
“In paragraph 16 he states: “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.” That should be obvious. We know that Crown prerogative, as exercised by the Prime Minister, is subject to judicial review. We know that statute is subject to judicial review. We know that proceedings in the House and Standing Orders have not hitherto been subject to judicial review or judicial question. The Bill provides a connection between what happens in the House and in the rest of the world. We are providing a bridge of law that brings the courts into the House.”
“He states that the Bill is “to make statutory provision for matters which fall within Parliament’s exclusive cognizance and which may affect the established privileges of the House of Commons as well as upsetting the essential comity which has been established over a long period between Parliament and the Courts.” Erskine May makes it clear that “cognizance” refers to the right of both Houses “to be the sole judge of their own proceedings, and to settle—or depart from—their own codes of procedure.” The Clerk is clear in a bald statement in paragraph 12 of his memorandum: “The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates.” He goes on to explain how that occurs under clause 2(2), which we have already debated.”
“I cannot think of a precedent, other than the Parliamentary Standards Bill, where a Government flatly refused to accept the advice of the Clerk of the House on a question of the potential justiciability of legislation before the House. The Bill before us is a major change to the constitutional settlement of this country, and it is backed by people in the Government who we know favour a written constitution—an entirely different constitutional settlement. That raises the question whether the Government have got it right when they say that the Clerk’s fears are to be disregarded. With the indulgence of the Committee, I shall quote rather extensively from the memorandum submitted by the Clerk as written evidence to the Political and Constitutional Reform Committee.”
“I merely advert to the fact that it represents another testing of the boundaries between the courts and Parliament. We are told not to worry—the Bill’s provisions are immune from the courts, and nobody is going to interfere in what we decide is a Speaker’s certificate, certificating a vote of no confidence that satisfies the majority. When we are blandly and bluntly told that by the Government and at the same time told by the Clerk of the House who has bravely and independently—in his constitutional capacity as an independent guardian of our constitutional arrangements—issued a memorandum, to which I shall refer later, that flatly contradicts the Government’s view, we are obliged to take the matter very seriously.”
“The present situation begs for something that many have recommended for some time: that this Parliament should have a privilege Act to delineate clearly the immunities of Parliament in relation to the functioning of the courts, but we are in an even more tense situation because we are arranging our constitution in other areas that question the very sovereignty of the House. We now have a Supreme Court and it is widely known that many jurists who serve at various levels of the judiciary take differing views of the notions of parliamentary sovereignty and parliamentary privilege. There was recently a case concerning the possible effective expulsion of an hon. Member as a result of a judicial decision. I do not comment on its merits as it is still sub judice.”
“I stand corrected—again. I fear that that may occur rather often during my presentation. The case relating to the Hunting Act 2004 was certainly an attempt to impede the free functioning of Parliament in its judicial function. In addition, an attempt was made to judicially review the lack of a referendum on what was then the Lisbon treaty. There are other examples of that tension, not least over the arrest of my hon. Friend the Member for Ashford (Damian Green), and I believe that only today, in connection with another matter, are the limits of the courts being resolved.”
“The hon. Gentleman makes an extremely important point, to which I shall return. The entire Bill could be dealt with through Standing Orders. The only reason we have a Bill is either that a Bill is favoured by those who want to move towards a written constitution—I do not remember that being in anybody’s manifesto—”
“There we are. Perhaps that is why the Opposition support the Bill. We have just had a Division in which 400 right hon. and hon. Members were in the No Lobby and only a handful of us in the Aye Lobby. That underlines the curious consensus in favour of certain principles of the Bill. I do not think either of the elected parties in the coalition was in favour of a written constitution— [Interruption.] That is two parties, but the one that won the election certainly did not—”
“I do not remember that being a great issue in the general election, but we are, in effect, creating one of the standard features of a written constitution, thereby tempting the courts to start interfering in the internal workings of the House.”
“We are importing continental and American-style jurisprudence into our judicial decision making. Some judges are becoming more and more adventurous about how they interpret statute and where they feel entitled to make judicial interpretations, and the Bill invites them to decide when there might be a general election under particular circumstances.”
“I quote again from the Clerk’s memorandum: “As these would become justiciable questions, the courts could be drawn into matters of acute political controversy.” I respect the fact that many in the House think we should have a Supreme Court like the European Court of Justice in the European Union or the Supreme Court of the United States, which is essentially a political court, but that is a very big constitutional change. We ought to have a royal commission about it, there ought to be debates on the Adjournment about it and the implications of drawing the courts into politics, if that is what we are going to do, ought to be properly explored. The way in which the Supreme Court is appointed to make it accountable for its political judgments is another important question.”
“I am grateful for that assurance. The Minister, who in all these debates has shown impeccable manners and tact despite the pressure he is under, should be looking for an alternative way of delivering this part of the coalition agreement, to which the hon. Member for Stoke-on-Trent Central (Tristram Hunt) alluded. The Speaker’s decisions will be taken under immense political pressure, as he decides what constitutes a confidence motion, what amendments might be tabled to amend a confidence motion, whether, if carried, that would invalidate the motion, whether the amendment could constitute a motion of confidence, and the consequences of amendments being carried or the motion being carried.”
“They could therefore mount a challenge saying that the certificate was not valid because they were prevented from voting. A question also arises if sick colleagues cannot get into the Lobby and are nodded through. Would that constitute a ground for challenging a vote of confidence?”
“I would be the first to accept that it may be regarded as a more elaborate bit of sticking plaster, because the clause will be subject to judicial interpretation. A certificate could not be presented to the courts—not even the Speaker could present one to a court for adjudication. The word “whatsoever” in the amendment means that we are referring not just to our own courts, but to the European Court of Human Rights, which is not just a figment of some Eurosceptic’s imagination. The Clerk himself has adverted to the fact that the ECHR, under article 10, could be adverted to as a cause for judicial review. If a Member of Parliament was prevented from voting in the motion of confidence, they could say that their vote should be taken into account for a valid certificate to be issued by the Speaker.”
“He says: “As to the practical issue of a “super-majority” SO being able to be amended or repealed only by a super-majority, I see no difficulty. The Speaker would be the arbiter of whether a motion…either was (a) orderly and (b) had been agreed to; he would be bound by the Standing Order (which should perhaps contain an explicit prohibition on “notwithstanding”-type Motions), and his decision would be beyond any external review.” That neatly and devastatingly removes the need for the entire Bill. We could be operating entirely through Standing Orders, which would be protected by the super-majority that the Government want to embed in legislation for general elections. It leaves the question of why the Government are resisting this advice. Amendment 6 is a more elaborate way of saying what the Government have already put in the Bill.”
“On whether there are alternative ways of achieving the Bill’s intentions without the risk of judicial interference, the Committee noted, in paragraph 38: “As the Committee has noted, setting out the requirement in Standing Orders would not be satisfactory because Standing Orders can be amended, suspended or revoked by a single simple majority vote of the House of Commons only.” That is not correct. I have taken further advice from the Clerks and I have a letter from the Clerk Assistant and Director General, Mr Robert Rogers, which, if the Committee will indulge me, I will quote. He explains that there is a precedent of super-majorities in Standing Orders being used, for example, on closure motions in the 1880s.”
“The memorandum has been considered by the Select Committee, which attempted, in the short time available, to conduct pre-legislative scrutiny. It reached two principal conclusions. Paragraph 8 states: “The Government needs to respond to the concerns expressed by the Clerk of the House of Commons about the potential impact of clause 2 of the Bill on parliamentary privilege.” Paragraph 9 states: “The purpose of the Bill needs to be achieved without inviting the courts to question aspects of the House’s own procedures or the actions of the Speaker, except where this is absolutely unavoidable and clearly justifiable.” The qualification reflects the fact that on the Committee there was some disagreement about the seriousness of the threat and between those who are in favour of a written constitution and those who are in favour not of a written constitution but of the settlement that relies upon our immunity.”
“I am perfectly prepared to accept that point. I refer to judicial activism only because there are champions of judicial activism who would like the courts to be more judicially activist. The Bill creates circumstances whereby we tempt judicial activism, which is contrary to our legal traditions. It increases the danger of the Government’s assurances simply not being delivered, or of their not being able to make these assurances with any confidence. The Clerk, in his memorandum, specifically says: “In the case of Clause 2(3) it would be for the court to determine whether a document issued by the Speaker was a ‘certificate’ for the purposes of that clause. It is not impossible for a court to take the view that what appeared to be a certificate was not a ‘certificate’”.”
“The Whips are out in force today, and I do not think that we will really find out what Members think about it. However, that invites the other place to look at the privilege and immunities of the House, and to propose comprehensive amendments that protect Parliament from judicial review.”
“My hon. Friend adverts to an extremely relevant precedent. What would happen if a two-thirds majority was obtained, or not obtained, by just one vote, or the Speaker interpreted the result as a vote of confidence where there was one vote in it that was represented by somebody who was or was not present for whatever reason? These are very dangerous areas. I have two final points, and I am grateful for the indulgence of the Committee in allowing me to quote extensively from documents. The Bill is being driven by an extraordinary consensus on some issues and by the fact that it is so close to the survival of the coalition that it is difficult openly to debate it. The Prime Minister said before the election that Committee stages of Bills should not be whipped, so that what a Committee thought can be understood.”
“All that can be forestalled if the Minister simply says, “These matters cannot be resolved today,” because they cannot be resolved on the basis of parliamentary counsel’s advice to Ministers about the drafting of Bills. We need the other place to give the highest and most independent legal advice to ensure that we do not inadvertently bring about what the Government themselves do not want to see.”
“I do not think that I can recall a major constitutional measure that was so closely associated with the survival of one Administration. We have to pinch ourselves when we think of what we are doing in reality: we are completely changing our constitutional settlement at the behest of a coalition, so that it can remain in power for five years. I do not even think that that is ethical. Parliament’s immunity is basically being screwed up, and, although a Bill can at least be repealed, once the courts have been allowed into our proceedings, we will never get them out again without a major break in the constitution such as in 1689.”
“The hon. Gentleman is absolutely right. The amendment, as drafted by my hon. Friend the Member for Stone, deals with only one aspect of the matter, and, given our limited time to scrutinise this enormously important Bill, I explicitly invite the other place to look carefully at all the aspects and the advice of the Clerk. One of its own Committees is considering the matter and might well come up with different conclusions from those of the Commons Political and Constitutional Reform Committee. The Lords sorted out the IPSA Bill, under which they kept our proceedings immune from the courts, and I very much hope that they will do the same with this Bill. My concluding point is a general one about the Bill but is relevant to the amendment.”
“If the Parliamentary Voting Systems and Constituencies Bill had been separate Bills, I do not think that either would have gone through. On the IPSA Bill, at one stage there was a proposal to allow IPSA to adjudicate on and punish Members for breaching the rules. That would have driven a coach and horses through our traditional immunities under the Bill of Rights, but it was removed in the other place.”
“What the hon. Gentleman is suggesting might well be sensible in one respect, but I fear that it will not prevent the courts from having a go at this. Indeed, if what constitutes a motion of confidence is codified in our Standing Orders, the courts will then be interpreting whether our Standing Orders reflect what could be regarded as such. If he wants clarity and is seeking to provide a better definition, this has to be put into the legislation. Of course, that reflects the point that we are tempting the courts to interfere in the proceedings of this House.”
“My hon. Friend is making an extremely important point about the European Court of Human Rights. As soon as something gets into the Court, it respects no immunities whatsoever—nor does the European Court of Justice, but that is not adverted to in this case. Once a case is in that system, we do not know where it will lead. The European Court of Human Rights certainly would not respect the limitations of the 1689 Act.”
“Bluntly, what the hon. Gentleman is averting to is a power struggle. The question is whether the House will stand up for its immunities or give them up. The Bill is an indication that we want to give them up.”
“We all know that we are talking about heated and potentially controversial circumstances. If there was a raging controversy about alleged malpractice in our proceedings or surrounding them, and if public opinion was strongly supportive of one view or the other, there would be intense pressure on a court to intervene. Does my hon. and learned Friend not think it would be difficult for a court not to intervene under such circumstances?”
“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.”