Last week Malcolm Jack, the Clerk of the House of Commons, got a little flurry of media coverage for his evidence before a Parliamentary committee considering the proposed legislation for fixed-term Parliaments. “Parts of the government’s plans to bring in fixed-term parliaments are vulnerable to legal challenge” was how the BBC reported it.
It is understandable why that got the headlines, but lurking in the detail are important questions about how Parliament operates and whether its administration is competent. Jack’s evidence, and concerns about the legislation, really fall into three parts.
First, as might be expected from an official whose role is deeply embedded in Parliamentary culture, he raised issues of principle about whether Parliament should makes its own actions subject to decision by the courts. Passing a law about fixed-term Parliaments would do that, as having a law means people can take legal action over whether or not it is being followed.
The supremacy of Parliament is a core part of our political heritage and, when it was a question of Parliament or hereditary monarchy, a highly admirable cause to fight for. However, the dangers of applying it too widely in the modern age were amply illustrated by the massively (and rightly) hostile reaction to the attempt of some MPs to argue that they could not be prosecuted over their expenses because the courts should not be able to interfere with the workings of Parliament in this way. Myself, I am quite happy with the idea that Parliament agrees to subject itself to the courts as and when appropriate.
Second, because of his defence of Parliamentary supremacy Jack argued instead that fixed-term Parliaments could be introduced by amending the House of Commons’ standing orders. Committee chairman Graham Allen neatly highlighted the problem with relying on standing orders:
The advantage of a statute is that the Government must go through what they think is a very long public process of producing a Bill, whereas Standing Orders can be amended by a Government majority in the House, pretty much on a couple of days’ notice. These things could therefore be changed despite the view of many parliamentarians, whereas if it is a statute, at least it’s out there and we can see what they are up to … Standing Orders are regularly suspended by Government, probably on a daily basis. The 10 o’clock rule is just nodded through as a suspension, so what’s in the Standing Orders, unlike the statute, can be altered very rapidly at the whim of someone like the Chief Whip.
In addition, as Nick Boles MP highlighted, legislation requires the consent of both Houses of Parliament; standing order changes can be rushed through the Commons.
Jack Straw subsequently talked up Malcolm Jack’s criticism saying he had “severely criticised” the Bill. However, to argue that fixed term Parliaments should be fixed in a way that makes them extremely unfixed isn’t a criticism that stands up in my book. Both the Jacks are wrong on this.
But thirdly, Malcolm Jack expressed a range of concerns about how in practice the vote to terminate a fixed-term Parliament – which under the bill requires a two-thirds majority – might be conducted.
Reading his evidence on this rather reminded me of the witnesses who used to argue against the secret ballot to nineteenth century Parliamentary committees. Those witnesses managed to come up with all sorts of administrative concerns as to why the secret ballot could not work, including a detailed discussion at one point about how people with telescopes could spy on voters from afar as they completed their ballot papers.
The lack of telescope-based voting fraud shows how misplaced those arguments were; they were not reasons against the secret ballot, they were simply details that had to be covered when introducing it.
So too with Jack’s arguments, including his concerns that there are many means by which votes are not properly conducted at present, such as Tellers leaving the voting lobbies before all MPs have passed through. Under legislation for a fixed-term Parliament, an improperly conducted vote might be open to legal challenge he warned.
However, if one of Parliament’s top officials really thinks its votes are so unreliable that there is an actual danger they could not stand up to a court scrutiny, that should be an urgent call for reforming how those votes are conducted, not an excuse to avoid any chance of such scrutiny.
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11 Comments
“if one of Parliament’s top officials really thinks its votes are so unreliable that there is an actual danger they could not stand up to a court scrutiny, that should be an urgent call for reforming how those votes are conducted, not an excuse to avoid any chance of such scrutiny”
Well, quite. This is the bloody legislature after all. If they’re that worried about how votes go it should be an urgent constitutional matter not a throwaway argument against a particular piece of tinkering.
The other problem with a law on fixed term parliaments, as David Howarth pointed out, is that Parliament can ignore them with a majority vote, since it cannot legislate to restrict a future parliament.
http://politicomaniac.net/2010/09/britains-simon-says-constitution/
We need a written constitution, so that this sort of thing is actually possible to do, not an insolvable recursive equation.
A bit off topic Mark, but is anyone publishing a post with reference to Bob Russell?
Thanks, a useful and informative piece. Would you consider sending it to the Guardian, for instance, for publication? A mini-series on the government’s constitutional reforms might be a useful counterweight to Jack Straw’s opportunist oppositionism.
Joe: agree with you on written constitution, but in the current situation I think legislation is much better than standing orders as it takes longer – and requires a majority in the upper house – to change a law.
@Joe Jordan
A written constitution against which the actions of government and all public bodies can be tested, including the laws that they legislate is, naturally, desirable, although, I don’t see it happening any time soon.
As to the objection that a future parliament could rescind any law set by a previous government, surely that applies even to the most basic underpinnings of our democracy? Yet successive governments have happily kept their fingers off our democracy. Surely this would apply to a parliamentary fixed term, too? And surely the Lords (or the future Senate or whatever it will be called) would hold the Commons to that, anyway?
We shouldnt be in the slightest bit surprised when establishment figures like Jack argue that moving away from the status quo is all too difficult. It is them who have held this country back for generations with this pathetic nit-picking which neatly avoids noticing that almost every other democracy in the world moved on decades ago.
We also shouldnt be in the slightest bit surprised when Labour politicians criticise what we are doing before we’ve even finished speaking – they are currently employing the US Republican Party’s current methods to the letter: opposing everything, not cooperating with anything, acting as though the least election was illegally stolen, accusing the administration of being “extremist”, and pretending that they werent in power for a decade until recently…
I can remember having to advise Parliament’s legal counsel on the standard length of time required for a transformative order to pass. (I’d rung them to find out, but ended up having to explain it to them using Erskine May!) In fact, Erskine May + confident quotation can probably get almost anything done in parliament – I have little faith in many people beyong perhaps David Howarth and David Heath on this issue…
Fundamental constitutional change that was not in the manifesto! What about Cameron’s pledge to introduce laws that would require a general election within 6 months of a new PM? That WAS in his manifesto!
Hang on a minute, Mark Wright. Surely the high profile case about elections being stolen at the moment are, firstly the Oldham and Saddleworth one, and secondly, the Waltham Forest one?
@Mark Pack
Thanks, in the current situation (assuming we aren’t going to sweep away the queen and everything and write the rules from scratch) I agree that legislation is a reasonable approach. It’s just ideally we wouldn’t need to do this.
I am still in favour of sweeping away the queen and writing the rules from scratch, though.
@Paul McKeown
The reason I disagree is technical and fiddly: “the constitution says”.
If the Constitution says that it takes a 66% vote in both houses to change the Constitution, then amending the Constitution to add fixed term parliaments with a 66% override is possible; you can’t change it with a 50% vote.
The legislature can go about its normal business on 50% votes as usual, which is better for legislative issues.
The difference is that without cross-party support (assuming the lords is proportional, since noone is going to win 66% of pop vote changes can be blocked without consensus,) noone can mess with the constitution or pass a “disregarding the fixed term parliaments act we call an election now bill”.
In the current situation you can, on a 50% vote, making a mockery of the whole thing – it works if it is a convention, but in 100 years some prime minister can just say “bugger that” and we’re back to the old system.