Fixed-term Parliaments Bill Debate

Geoffrey Cox calls on the Government to address proposed constitutional changes which could possibly allow a challenge in the courts as to whether a particular motion was in fact a motion of confidence in the Government and thereby trigger an early general election.

Mr Cox: I had not intended to speak, and I shall be extremely brief. Most of my remarks will be addressed to the Minister in the hope that he can provide the clarification in substance to the questions asked by my hon. Friends and Opposition Members, which I should like to reinforce.

My first question is precisely that which my hon. Friend the Member for South Swindon (Mr Buckland) just asked. Why not add the proposed words? If clause 2(3) is intended to be an instruction to the courts that a certificate shall not be challenged, on the face of it there could be no real reason, unless the Minister has thought of something that others have not thought of or been advised otherwise, why the injunction of my hon. Friend the Member for Stone (Mr Cash), which is more expressive, explicit and detailed, should not be added. Will the Minister elucidate the purpose of stopping short at the word "purposes" and not going on to be as explicit as possible?

I ask that because historically, ouster clauses in administrative law have not been conspicuously successful. The courts have not paid very much attention to interpreting their duty to examine such issues, and often even where the ouster clause has been passed. [ Interruption. ] I see from the sedentary reaction of my hon. Friend the Member for Somerton and Frome (Mr Heath)-the Deputy Leader of the House-that the reason may be that such provisions are so pointless that there is no point in going any further. If that is the reason, it would be helpful if the Government made that clear, so that Members could consider that. I have to tell him that I do not consider the provision to be pointless-I would not imagine that the Government would do anything that was pointless in drafting the legislation.

The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath) indicated assent.

Mr Cox: I see my hon. Friend nodding sagely. That provision therefore must have a function. If that function can be increased in its effect and efficacy by adding the proposed words, why not incorporate them?

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That brings me to my second point. If it is necessary under clause 3(3) to try to instruct the courts that the certificate should not be justiciable-that it should not be considered-that must imply, as does my hon. Friend's reaction from the Front Bench, that the Government are aware that the courts may well, even in remote and possibly extreme circumstances, become ensnared in the examination of these issues. One can see considerable skill and intelligence at work in the drafting of the Bill. One sees that it is intended not to be tempting to the courts. If we codify too much in statute, the danger is that the courts would be drawn into examining whether the preconditions for a motion of confidence had been met, whether the definitions were properly complied with and so on. What the legislation seems to be doing-if this is the intention, it is a laudable one-is enacting, in broad outline, so as to make it clear to the courts, that the critical questions of definition and discretion are still for the House and the proper authorities of the House. It is a statute that is intended to preserve a certain flexibility and suppleness so that the courts are not drawn into examining such issues, whereas they would be if we laid down too precise a definition of the concepts that they involve.

I appreciate that, and I see the point of it. It no doubt forms part of the Government's confidence that the courts will not ordinarily enter into that territory. However, the mere presence of that ouster clause suggests that the Government are aware that in some circumstances they might. As the Government have indicated-albeit via a sedentary reaction-they are plainly aware that ouster clauses do not always work. That suggests to me that the Government are content-or at least have made a strategic decision-that in certain circumstances the judicial authorities may come to interpret and consider this legislation. I accept that that is highly unlikely in the ordinary case, given the amount of discretion, the amount of territory left to the Speaker and the ill-defined nature of many of the concepts. It would be a bold court indeed that entered into a discussion of such issues and allowed them to become the subject of a judicial review.

Mr Jenkin: We all know that we are talking about heated and potentially controversial circumstances. If there was a raging controversy about alleged malpractice in our proceedings or surrounding them, and if public opinion was strongly supportive of one view or the other, there would be intense pressure on a court to intervene. Does my hon. and learned Friend not think it would be difficult for a court not to intervene under such circumstances?

Mr Cox: No, I do not think that. Intense pressure is precisely what an independent judiciary is set up to resist. One would expect and hope for that from a senior judge. We are fortunate in the judiciary we have in this country. I hope that hon. Members will reflect carefully on some of the language that we have used in this debate today. It is not the case that the judiciary have an appetite to assume the powers of this House. Indeed, in my experience the preponderance in the judiciary is to be careful and scrupulous in the way they observe the parameters of judicial power.

The problem is-if I can extend this parenthesis as briefly as I may-that we have invited the judiciary into the territory time after time, since the European Communities Act 1972, which fundamentally altered the constitutional arrangements in this country. It essentially meant that there was a higher constitutional court, namely the European Court of Justice-we already have it-which presupposes and believes it is capable of trumping domestic law. That ultimately led to a decision in a case called Factortame, in which an Act of Parliament was set aside by the House of Lords, on the basis of the seniority-or superiority-of the European Union's law. Then we had the Human Rights Act 1998, which preserves-or attempts to preserve-a careful balance. Nevertheless, it invites the courts into consideration of the policies and legislative objectives-almost on the basis of their merits-that this House has always considered to be its prerogative and to fall within its exclusive sphere. The courts are careful, but they themselves acknowledge that the Human Rights Act has invited them further into that territory.

Chris Bryant: The hon. and learned Gentleman is making an important contribution, and he is right about the reluctance of the courts, for the most part, to intervene and tread on our toes, as it were. However, the truth is that those elements of parliamentary privilege that attach because of not wishing to interfere with proceedings in Parliament get very fuzzy at the edges. Indeed, there are areas where others want the courts to express a view. My anxiety is not that there would be a challenge when the Speaker had issued a certificate, but that a challenge would be far more likely when the Speaker had decided not to do so.

Mr Cox: I have heard that observation made, and I hope that the Minister will be able to address it. I do not feel quite as concerned as hon. Members who have expressed their views on that point, and I will say why. A court would very soon see through an argument that went: "The Speaker has not issued a certificate in circumstances where we"-the party bringing the application to the court-"think he should have done." The reason is that if a certificate is conclusive for all purposes, so must the absence of a certificate be. I do not believe for a moment that a court would see the matter any other way when the Speaker had chosen not to make a certificate. Otherwise, we would have to have a provision in the Bill saying that if the Speaker chooses not to certify, that should not be challenged either. It must be implied that if a Speaker made a deliberate and conscious choice not to certify, the absence of the certificate-that choice-must equally be conclusive, and I think that most courts would see it that way. One could argue that that should be explicit in the Bill, but for my purposes, I would not have thought a court would find impressive an argument that said that a Speaker who decided not to certify could be judicially reviewed, whereas if he had certified-let us say, in the negative-he could not be. That would be pointless.

Mr George Howarth (Knowsley) (Lab): The issuing or non-issuing of a certificate is a slightly false comparison. The issuing of a certificate would result in action-providing that it was not challenged successfully in a court-whereas the non-issuing of a certificate would, I presume, simply preserve the status quo.

Mr Cox: What is the point of a certificate? It is not going to be challenged in a court, because the Government and this House will instruct the courts not to look at it. The point of the certificate is merely to express in writing the Speaker's view that something had been a motion of confidence. If he does not issue a certificate, it is plainly the case that he has reached the view that it is not a motion of confidence. However, it is highly unlikely that the mere fact that a Speaker had produced that view but not committed it to a piece of paper would induce the courts to enter that territory and issue what used to be called a writ of mandamus-it is now called a mandatory order-to force him to do so. I find that improbable and implausible. I hope that the Minister will draw some comfort from that, but he should not draw complete comfort from it, because the mere fact that we are considering whether the courts would or would not be able to enter this territory will induce litigants, lobby groups and political groups to bring these very applications before the courts to test out the territory. It will not be long before the courts start to consider the extent to which the Bill allows them in, and the extent to which it does not. That is where the hon. Gentleman of whose constituency I am shamefully ignorant-

Chris Bryant: Stoke-on-Trent.

Mr Cox: The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted the recent judgment of Lord Phillips, and that is important because Lord Phillips made it plain that the courts will reserve the power to define the parameters of parliamentary prerogative and privilege. If the Bill remains enacted in the law of this country for a long period, which I rather doubt, there will inevitably be a point at which the courts are invited in and at which they will start to examine the extent to which they can and cannot become involved. Their view might not entirely coincide with that of the Government. For example, the question of whether a certificate is valid might arise. The Bill states:

A court might well feel entitled to consider whether, as a matter of law, it is in fact a certificate. In the past, that is the way in which ouster clauses have been outflanked.

I am asking the Minister to consider this matter, and I am asking from the heart. I have noticed that, from time to time, he has found many of the interventions by Members not altogether to his taste. Perhaps the smile of the Cheshire cat is always seated on his face during these debates simply because of his serene command of his brief and his sublime confidence in the merits of this legislation. However, I ask him to address the consciences of many of the Members on his own side who have deep and sincere concerns. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) is among them, and when he rises to speak on matters of the constitution, he must always be listened to with respect. He may not be a lawyer but, by Jove, his instincts on the constitution are proud and honoured by a long tradition in this House. I pay tribute to him for standing up with such integrity and for such a long time for the traditional view of the constitution in this House. It is not a bad thing to stand up for tradition. It is not wrong to honour the way in which our forefathers constructed the constitution, the wisdom of it and the value that it has conveyed down the ages to the inhabitants of this country.

Will the Minister address this matter? I hope that I have expressed myself modestly by saying that I do not endorse or adopt many of the more exaggerated flights of fantasy that have occasionally been bandied about the Floor of the House. However, it surely cannot be denied that there is some risk and some legitimate cause for concern, when this matter seems to prey on the minds and the consciences of so many Members of this House who are motivated by entirely sincere reasons, rather than merely by the need to hear the sound of their own voice. I ask the Minister to address those concerns with the sincerity with which they have been expressed.

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