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861 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 862
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