Should parliament give itself more powers? That’s the intriguing question posed by a paper to be published next week by the Constitution Society, an educational charity established five years ago.
As a matter of constitutional theory, the powers of parliament are unlimited. Subject to royal assent – which is regarded as a formality – the Commons and Lords acting together can pass any laws they like.
What we are talking about here are the so-called privileges of parliament, the best known of which is freedom of speech. The question addressed by the paper is whether those privileges should all be codified into a new act of parliament.
The arguments are finely balanced. On the one hand, parliamentary privileges are unclear and surprisingly limited. On the other hand, it may be easier for parliament to assert new privileges if things are left as they are.
The Constitution Society paper is written by Richard Gordon QC and Sir Malcolm Jack, who as clerk of the Commons was its chief executive until 2011. As I reported here last year, an earlier paper from Gordon and a colleague cast doubt on the government’s belief that witnesses could be compelled to attend select committees – such as those investigating tax avoidance – and that witnesses could be required to answer truthfully all questions put to them.
A comprehensive parliamentary privileges act was recommended as long ago as 1999 by a joint committee of the Lords and Commons. Nothing was done. Perhaps that was because, as the government said in a consultation paper last year, “the word ‘privilege’ is unfortunate in its suggestion of special treatment for members of parliament”. But that’s not quite what it means.
Ministers rightly pointed out that elected representatives (and peers, presumably) must be free to raise any matter in debate without fear of civil or criminal liability. Another privilege claimed by each house of parliament is jurisdiction over its internal affairs and procedures, known as “exclusive cognisance”.
Even so, the government was not persuaded of the need for comprehensive codification, shrewdly pointing out the risk of unintended consequences. The whole issue is being considered by another joint committee, which has finished taking evidence and is currently drafting its report.
What seems to worry Gordon and Jack is the role of the courts. The Bill of Rights 1689, which codified free speech, derived from a clash with the monarchy. “In modern-day Britain the threat, real or imagined, is seen as coming from an increasingly powerful judiciary,” they continue.
The authors believe that the judiciary has been “greatly empowered” as a result of the European Communities Act 1972 (which allows the courts to override other legislation) and the Human Rights Act 1998 (which permits the courts to declare legislation incompatible with the human rights convention).
That’s why a new statute would be controversial, according to Gordon and Jack. “There would seem to be many who would oppose codification not because of principled objection but because they are concerned about letting the genie out of the bottle in terms of judicial activism over newly created laws.”
The courts, of course, will not override parliamentary privilege. They will not decide whether parliament has followed its own procedures and they will not find an MP in contempt for breaching an injunction during proceedings in parliament. What the judges will decide, however, is the scope of parliamentary privilege. It is they who ruled, for example, that privilege does not permit MPs to fiddle their expenses. Gordon and Jack find support for their concerns in the evidence given by senior judges to the joint parliamentary committee. Lord Justice Beatson said that development of the common law by the judges “allows for the gradual evolution to meet changing needs of the two houses”.
The lord chief justice was even blunter. Asked whether there should be a comprehensive parliamentary privileges act, Lord Judge advised MPs and peers to “leave well alone” unless they had reservations about whether they could exercise their responsibilities in the way they wanted.
If they had no such concerns, Judge said, he “would not go down a legislative route that defined, semi-defined, sub-divided, allowed for, or exercised this and that, because you would end up in interminable discussions, and, in court, interminable arguments, about what that really meant”.
There is understandable concern in parliament and the wider world about leaving things to the judiciary. The judges’ response is that parliament can always overturn any of their rulings.
There is also a lot to be said for legislation that clearly sets out the powers that select committees have over their witnesses. And my own view – borne out, I believe, by what Beatson and Judge had to say – is that fears of judicial activism in the field of parliamentary privilege are overstated, at least as far as the UK’s courts are concerned.
But, in the end, nobody would describe the current system of parliamentary privilege as dysfunctional. And if it ain’t broke …