The House of Commons is in danger of cutting its own constitutional throat, but the Clerk of the House is trying to stop them. The clerk is Malcolm Jack, a man of scholarship and courage who is the ultimate referee on all constitutional questions which affect the Commons. His core duty is to advise the House, its Speaker, the committees and MPs on the practice and procedure of the House, and its rights.

Last Friday Dr Jack sent a memorandum to the Standards Committee on the “Privilege Aspects of the Parliamentary Standards Bill”. He gives a serious warning about particular aspects of the Bill, which is expected to be rushed through both Houses of Parliament before the summer recess. The Lords is due to rise on July 21, so time would be very limited. Rushed legislation is usually a disaster, and this would be legislation in a panic.

In the introduction to his memorandum, Dr Jack expressed his two greatest concerns. He considers that the Bill could disturb the existing balance of the relationship between Parliament and the courts. He also thinks it might damage the freedom of speech of both Houses.

He writes: “I should stress that I make no comment whatever on the merits of the Bill’s policy proposals; it would be improper for me to do so. My 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 thereby.”

People often speak of Britain having an unwritten constitution, but in fact most of it is written in terms of statute or judicial precedent. For instance, the guarantee of free speech in Parliament goes back to the Bill of Rights, which belongs to the 1688 Revolution. The Clerk of the House is very reasonably concerned about the effect of Clause 10 of the new Bill.

He describes it as being “a very wide qualification of the Bill of Rights ... it would mean that the words of Members generally, the evidence given by witnesses (including non-Members) before committees, and advice given by House officials on questions, amendments and other House business 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.”

In the present depressing climate of opinion, the public may not worry much about the rights of Parliament. They should worry a lot. The privileges of Parliament are needed to protect the public against the raw power of the executive. That was the justification for the Bill of Rights in the 17th century, and is still the justification today. Free speech in Parliament is essential if abuses are to be examined, including the abuses of Parliament itself.

The Clerk’s second big concern is the relationship between Parliament and the courts. This is an inevitable issue in any constitution. In Britain the ultimate sovereignty lies with the Commons; in the United States it lies with the Supreme Court. Britain is now going to have a Supreme Court. The wide resort to judicial review, as well as the impact of the Human Rights Act, have already increased the power of the courts.

The Clerk is undoubtedly correct in saying that “the Bill would provide a basis for the judiciary to make determinations in respect of the proceedings of the House of Commons”. That would be to “question” proceedings in Parliament, breaching Article Nine of the Bill of Rights which states that “the freedom of speech and debates of proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament”. That is one of the constitutional roots of our democracy.

In the US, the Supreme Court established ultimate sovereignty over Congress. As early as 1803, in the case of Marbury v Madison, the Supreme Court successfully asserted the right to strike down statutes which it held to be inconsistent with the Constitution. The Supreme Court consists of judges with no constituencies and no retirement age. They are more remote than Congressmen from the public, who have no way to dismiss them. If we follow the American line, the final decisions will be made, not even by the British Supreme Court, but by the European Court of Justice, which will be even more remote from British voters.

The morale of the Commons has of course been shaken by the expenses scandal. I have never seen a comparable loss of confidence. Any healthy institution wants to extend its own authority. The Parliamentary Standards Bill is seeking to deal with a problem which is only too real. Yet the remedy which has been proposed is to reduce the existing rights and functions of the House of Commons, including self-regulation. This is a move in the wrong direction. If the Commons cannot restore its reputation by doing its job better, it will certainly not do so by demonstrating its lack of confidence in its own authority.

The new Bill proposes to create a regulator — the Independent Parliamentary Standards Authority — to be called “Ipsa”, which will act as an independent authority for disciplining Parliament. No one in his or her right mind would contemplate joining such a preposterous body, which will start with no authority and is likely to be abolished as soon as anyone finds out that it has been built on sand. Quangos are always vulnerable: they have too many enemies and hardly any friends. They are appointed by politicians to suit their self-interest.

The Clerk of the House should be trusted, partly because he is the 50th in his line, of whom the first was appointed in 1363. If Ipsa is now appointed by Gordon Brown in 2009, it will be lucky to survive through 2010. Britain needs a strong and independent and new House of Commons, which would mean an early election; no one needs an ipsy-dipsy quango.

Times Recommends

• Care in old age: we won’t pay, the State can’t
• Viewers’ choice: our talentless Everyman
• Memo to the poor: go forth and don’t multiply