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859 Fixed-term <strong>Parliament</strong>s Bill 1 DECEMBER 2010 Fixed-term <strong>Parliament</strong>s Bill 860<br />
[Mark Durkan]<br />
I t<strong>here</strong>fore ask the Minister to acknowledge that<br />
t<strong>here</strong> are shortcomings in the Bill. Some of the amendments<br />
have their own shortcomings, but they do not diminish<br />
the serious problems with the Bill. If he will not accept<br />
amendments 6 and 23, will he agree to work in another<br />
place and in the House at another time to make his own<br />
amendments, so that the Bill does not create those<br />
difficulties and controversies?<br />
Under the Bill, the Speaker could be the subject of<br />
controversy. What if t<strong>here</strong> are differences between the<br />
Speaker and Deputy Speakers on the question whether<br />
to indicate in advance that a motion is certifiable? More<br />
importantly, as the hon. Member for Harwich and<br />
North Essex (Mr Jenkin) said, I believe that such matters<br />
could find themselves before a court, not only because<br />
somebody might want to contest the fact or content of<br />
a certificate, but more importantly because people might<br />
want to contest the failure to issue a certificate or the<br />
fairly questionable proceedings in advance of it. We do<br />
not want the Speaker of the House of Commons to be<br />
caught in the same position as Scottish football referees.<br />
They have been accused of taking and changing decisions<br />
in relation to subsequent arguments and events. Let us<br />
protect the office of the Speaker and this House.<br />
Mr Robert Buckland (South Swindon) (Con): I rise to<br />
make a brief contribution. I have listened with great<br />
interest to the debate and I await with even greater<br />
interest the Minister’s response to the very well advocated<br />
position on amendment 6, with which I have great<br />
sympathy.<br />
It seems blindingly simple to me. Clause 2(3) stops at<br />
the words, “for all purposes.” The comparison with<br />
section 3 of the <strong>Parliament</strong> Act 1911 has been made, so<br />
why not include the extra words,<br />
“and shall not be questioned in any court of law”?<br />
The amendment proposes the use of the word “whatsoever”,<br />
which was no doubt an attempt by my hon. Friend the.<br />
Member for Stone (Mr Cash) to deal with the European<br />
question—that is perfectly legitimate and I understand<br />
entirely the reason for his wording—but the point is the<br />
same: if such a provision was good in 1911, why is it not<br />
good now? If anything, the balance between <strong>Parliament</strong><br />
and the courts has deteriorated, as the hon. Member for<br />
Stoke-on-Trent Central (Tristram Hunt) eloquently outlined.<br />
The balance is now extremely fine, and it is in danger of<br />
being overturned in favour of judicial activism.<br />
It may well be that reliance will be placed upon the<br />
residual powers of article 9 of the Bill of Rights, but as<br />
an Act of <strong>Parliament</strong>, that too is subject to judicial<br />
interpretation. Over the years, it has been interpreted in<br />
a variety of ways by the courts. Notably, it has been<br />
impliedly waived or restricted by this House. Section 13<br />
of the Defamation Act 1996 is a good example of<br />
<strong>Parliament</strong> deciding, in effect, to allow its privilege to<br />
be qualified. I have strong views on the wisdom of that<br />
legislation—it was foolish and has led to unintended<br />
consequences, which are at the heart of this debate.<br />
No Member of <strong>Parliament</strong> wants a diminution of its<br />
authority or power. This is an elected Chamber and we<br />
represent the people of this country. Sovereignty means<br />
just that. It is right that all hon. Members worry—even<br />
if it is sounds like lawyers’ caution—about any further<br />
unintended diminution of our authority. That is why I<br />
support amendment 6. Why not change clause 2(3) to<br />
put things as far beyond doubt as possible, mirroring<br />
what legislators did in 1911, to ensure that the spectre of<br />
the judiciary questioning and second-guessing the<br />
proceedings of the House does not become a reality?<br />
Mr Cox: I had not intended to speak, and I shall be<br />
extremely brief. Most of my remarks will be addressed<br />
to the Minister in the hope that he can provide the<br />
clarification in substance to the questions asked by my<br />
hon. Friends and Opposition Members, which I should<br />
like to reinforce.<br />
My first question is precisely that which my hon.<br />
Friend the Member for South Swindon (Mr Buckland)<br />
just asked. Why not add the proposed words? If clause 2(3)<br />
is intended to be an instruction to the courts that a<br />
certificate shall not be challenged, on the face of it t<strong>here</strong><br />
could be no real reason, unless the Minister has thought<br />
of something that others have not thought of or been<br />
advised otherwise, why the injunction of my hon. Friend<br />
the Member for Stone (Mr Cash), which is more expressive,<br />
explicit and detailed, should not be added. Will the<br />
Minister elucidate the purpose of stopping short at the<br />
word “purposes” and not going on to be as explicit as<br />
possible?<br />
I ask that because historically, ouster clauses in<br />
administrative law have not been conspicuously successful.<br />
The courts have not paid very much attention to interpreting<br />
their duty to examine such issues, and often even w<strong>here</strong><br />
the ouster clause has been passed. [Interruption.] I see<br />
from the sedentary reaction of my hon. Friend the<br />
Member for Somerton and Frome (Mr Heath)—the<br />
Deputy Leader of the House—that the reason may be<br />
that such provisions are so pointless that t<strong>here</strong> is no<br />
point in going any further. If that is the reason, it would<br />
be helpful if the Government made that clear, so that<br />
Members could consider that. I have to tell him that I<br />
do not consider the provision to be pointless—I would<br />
not imagine that the Government would do anything<br />
that was pointless in drafting the legislation.<br />
The <strong>Parliament</strong>ary Secretary, Office of the Leader of<br />
the House of Commons (Mr David Heath) indicated<br />
assent.<br />
Mr Cox: I see my hon. Friend nodding sagely. That<br />
provision t<strong>here</strong>fore must have a function. If that function<br />
can be increased in its effect and efficacy by adding the<br />
proposed words, why not incorporate them?<br />
3pm<br />
That brings me to my second point. If it is necessary<br />
under clause 3(3) to try to instruct the courts that the<br />
certificate should not be justiciable—that it should not<br />
be considered—that must imply, as does my hon. Friend’s<br />
reaction from the Front Bench, that the Government<br />
are aware that the courts may well, even in remote and<br />
possibly extreme circumstances, become ensnared in the<br />
examination of these issues. One can see considerable<br />
skill and intelligence at work in the drafting of the Bill.<br />
One sees that it is intended not to be tempting to the<br />
courts. If we codify too much in statute, the danger is<br />
that the courts would be drawn into examining whether<br />
the preconditions for a motion of confidence had been<br />
met, whether the definitions were properly complied<br />
with and so on. What the legislation seems to be doing—if