The Government’s Parliamentary Standards Bill threatens MPs’ free speech and upsets the “essential comity established between Parliament and the Courts”, according to the Clerk of the House, Dr Malcolm Jack. The senior Commons official has submitted a devastating memo to the Justice Committee that threatens to blow the Bill out of the water.
Stressing that his “concern is only with the constitutional implications for Parliamentary privilege (including the right of free speech) and the extent to which the courts are likely to come into conflict with Parliament”, Jack warns MPs that the Bill, introduced by Harriet Harman, would allow the courts to interfere with matters in which they currently have no say.
Take clause 6, for example, which requires the House of Commons to maintain a code of conduct incorporating the so-called Nolan Principles.
The clause raises a constitutional issue by providing a basis for the judiciary to make determinations in respect of the proceedings of the House of Commons; in other words, to “question” proceedings in Parliament, notwithstanding the provisions of Article IX of the Bill of Rights.
If a person… is not satisfied that the code of conduct “incorporates the [Nolan] Principles… he could bring proceedings for judicial review and the courts will then determine the issue, if necessary by interpreting and construing resolutions as if they were law.
This could lead to a finding by a court that the House of Commons was under a duty to adopt an amending resolution. Under the present law, the courts will not make such a finding, but Clause 6 would provide the courts with a justification for doing so.
Jack points out that clause 8 of the Bill, which deals with enforcement, allows the courts a say in matters of Parliamentary privilege. Clause 8(9) even subjects MPs to “double jeopardy”, allowing them to be punished by the House of Commons as well as by the courts.
Clause 10(c) allows any evidence of proceedings in Parliament to be admissible in proceedings for an offence under clause 9.
This is a very wide qualification of the principle under Article IX of the Bill of Rights that such evidence is not admitted. It would mean that the words of members generally, the evidence given by witnesses (including non-members) before committees … could be admitted as evidence in criminal proceedings.
This could have a chilling effect on the freedom of speech of members and of witnesses before committees and would hamper the ability of House officials to give advice to members.
Lastly, says Jack, clause 11 suggests that the actions of the Speaker of the House of Commons could be the subject of judicial review.
Jack will be giving evidence to the Justice Committee next Tuesday. But his unstated message could not be clearer.
It would be foolhardy in the extreme for the Government to push this Bill through Parliament before the summer recess. Harriet Harman should think again.
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