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.