Malcolm Jack says legislation could mean courts would 'be drawn into matters of acute political controversy such as whether an election should be held'

This article is more than 10 years old

This article is more than 10 years old

A major potential flaw in the coalition's bill to introduce fixed-term parliaments was exposed when the clerk of the Commons today warned it would open the way for repeated legal challenges if parliament passed a vote of no confidence in a government, leading to a general election.

Malcolm Jack, parliament's most senior legislative expert, said the bill could mean the courts would "be drawn into matters of acute political controversy such as whether an election should be held".

It is rare for the clerk of the house to stray into criticism of the government, and only happens if he feels legislation will undermine parliament.

In evidence to the political and constitutional reform select committee, Jack said the legal challenges could be passed to the European court of justice.

In a memorandum to the committee, he argued that the fixed-term parliament bill – due to have its second reading next week – gives powers to the Speaker to issue a certificate declaring that a vote of no confidence in the government had been passed, prompting a general election before the planned five year fixed-term ended.

He said these certificates would be open to legal challenge, potentially bringing the courts and parliament into conflict and undermining parliamentary privilege.

Jack warned that any interested party could challenge whether a motion of no confidence had been correctly worded or processed, whether the decision had been correctly reached and recorded and whether the casting vote of the Speaker had been used appropriately.

He also criticised the government for failing to produce such complex legislation in draft form and revealed he had not been consulted before the bill was published, and said it was not wise for the government to be introducing piecemeal reform to parliamentary privilege when it also had plans to introduce a major bill reforming the law on privilege.

He suggested the bill needed to be recast so the plans for motions of no confidence were taken out of it and put into standing orders, making them less available to legal challenge.

Jack Straw, the shadow justice secretary, said: "A matter of months after entering office, Nick Clegg is presiding over a constitutional shambles.

"The legislation providing for fixed-term parliaments has been severely criticised by the Clerk of the Commons.

"The Deputy PM needs to get back to go back to the drawing board and work with all sides to achieve genuine, fair, progressive political change. The opportunity is still there."

Tristam Hunt, a Labour MP on the committee, said the cler's comments "show the bill has not been thought through, since it opens up the calling of a general election to judicial review, and putting judges in charge of our democracy, including the date of a general election".

The Cabinet Office challenged Jack's view, saying they did not think it was a realistic prospect that confidence motions would be subject to legal challenge in the courts.

Some government sources said constitutional reform often came up against individuals opposed to change.

A cabinet office spokesman rejected Jack's arguments, saying the government "believes it is not realistic to expect that the Courts would start trespassing on such highly politicised issues and matters related to the internal workings of parliament".

The spokesman added: "There is no reason to believe that the courts would not continue to regard matters relating to the internal operation of the House as 'proceedings in parliament', in which they cannot interfere.

"The bill specifies that the Speaker's certificate [of (a) when the Commons has passed a motion by two-thirds or (b) the no confidence process set out in the bill has been complied with] is conclusive for all purposes, meaning the decision about whether the conditions for an early election are satisfied is for the Speaker, not for the courts or the executive."

Jack warned that the provisions as currently constructed in the bill "make the Speaker's consideration of confidence motions and the house's practices justifiable questions for determination by ordinary courts".

Labour stressed it did not believe Jack's warnings justified its MPs voting against the bill at the second reading, but the party will raise detailed concerns at committee stage.

Jack's remarks may also intensify Tory backbench concerns about the bill, especially the prospect that the European courts could be involved.

Ministerial sources said inserting the provisions into standing orders was wrong because such orders could be ventured by a simple majority.

The government has already changed the bill to clarify the procedure when the Commons passes a motion of no confidence so it is clear parliament must be dissolved if no new government can be formed 14 days after the motion is passed.

Previously, the bill simply said a fixed-term parliament could only be brought to by a two-thirds majority of MPs.

The bill is intended to end the considerable advantage a governing party enjoys by virtue of the prime minister being able to tactically plan and choose an election date most favourable to his party.