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863 Fixed-term <strong>Parliament</strong>s Bill 1 DECEMBER 2010 Fixed-term <strong>Parliament</strong>s Bill 864<br />
[Mr Cox]<br />
that we are considering whether the courts would or<br />
would not be able to enter this territory will induce<br />
litigants, lobby groups and political groups to bring<br />
these very applications before the courts to test out the<br />
territory. It will not be long before the courts start to<br />
consider the extent to which the Bill allows them in, and<br />
the extent to which it does not. That is w<strong>here</strong> the hon.<br />
Gentleman of whose constituency I am shamefully<br />
ignorant—<br />
Chris Bryant: Stoke-on-Trent.<br />
Mr Cox: The hon. Member for Stoke-on-Trent Central<br />
(Tristram Hunt) quoted the recent judgment of Lord<br />
Phillips, and that is important because Lord Phillips<br />
made it plain that the courts will reserve the power to<br />
define the parameters of parliamentary prerogative and<br />
privilege. If the Bill remains enacted in the law of this<br />
country for a long period, which I rather doubt, t<strong>here</strong><br />
will inevitably be a point at which the courts are invited<br />
in and at which they will start to examine the extent to<br />
which they can and cannot become involved. Their view<br />
might not entirely coincide with that of the Government.<br />
For example, the question of whether a certificate is<br />
valid might arise. The Bill states:<br />
“A certificate under this section is conclusive for all purposes.”<br />
A court might well feel entitled to consider whether, as a<br />
matter of law, it is in fact a certificate. In the past, that is<br />
the way in which ouster clauses have been outflanked.<br />
I am asking the Minister to consider this matter, and<br />
I am asking from the heart. I have noticed that, from<br />
time to time, he has found many of the interventions by<br />
Members not altogether to his taste. Perhaps the smile<br />
of the Cheshire cat is always seated on his face during<br />
these debates simply because of his serene command of<br />
his brief and his sublime confidence in the merits of this<br />
legislation. However, I ask him to address the consciences<br />
of many of the Members on his own side who have deep<br />
and sincere concerns. My hon. Friend the Member for<br />
Aldridge-Brownhills (Mr Shepherd) is among them,<br />
and when he rises to speak on matters of the constitution,<br />
he must always be listened to with respect. He may not<br />
be a lawyer but, by Jove, his instincts on the constitution<br />
are proud and honoured by a long tradition in this<br />
House. I pay tribute to him for standing up with such<br />
integrity and for such a long time for the traditional<br />
view of the constitution in this House. It is not a bad<br />
thing to stand up for tradition. It is not wrong to<br />
honour the way in which our forefathers constructed<br />
the constitution, the wisdom of it and the value that it<br />
has conveyed down the ages to the inhabitants of this<br />
country.<br />
Will the Minister address this matter? I hope that I<br />
have expressed myself modestly by saying that I do not<br />
endorse or adopt many of the more exaggerated flights<br />
of fantasy that have occasionally been bandied about<br />
the Floor of the House. However, it surely cannot be<br />
denied that t<strong>here</strong> is some risk and some legitimate cause<br />
for concern, when this matter seems to prey on the<br />
minds and the consciences of so many Members of this<br />
House who are motivated by entirely sincere reasons,<br />
rather than merely by the need to hear the sound of<br />
their own voice. I ask the Minister to address those<br />
concerns with the sincerity with which they have been<br />
expressed.<br />
Mr Harper: I am grateful for those kind words from<br />
my hon. and learned Friend the Member for Torridge<br />
and West Devon (Mr Cox).<br />
When Mr Hoyle was in the Chair last week, he made<br />
it clear that he did not intend to have a stand part<br />
debate on this clause as we will have touched on all<br />
parts of it when debating the amendments. Before I<br />
move on to considering the amendments, it is worth<br />
putting into context the parts of the clause about which<br />
Members are concerned.<br />
I think I am right in saying that the concerns expressed<br />
about privilege and about whether the courts should<br />
intervene have almost exclusively related to clause 2(2),<br />
which deals with motions of confidence. Interestingly,<br />
the Clerk of the House, in his evidence and in conversations<br />
with me, was not concerned about subsection (2), given<br />
that it uses a perfectly well-precedented certification<br />
procedure. His concern—I think I explain it accurately—was<br />
with subsection (1), which covers the certification of an<br />
early general election, rather than with the certification<br />
procedure in principle. His concern was with the nature<br />
of the procedure that had to take place before the<br />
Speaker certified. In other words, not only would the<br />
House have had to pass a motion on a Division, but a<br />
particular number of Members would have had to vote.<br />
3.15 pm<br />
Members expressed concern about motions of no<br />
confidence and the extent to which courts would want<br />
to interfere in them, but the Clerk of the House was<br />
exclusively concerned about clause 2(1), which deals<br />
with the House voting on a motion for an early general<br />
election, because of the two-thirds majority.<br />
Mr Jenkin: At the risk of repeating what I have<br />
already read out from the Speaker’s memorandum, I<br />
want to ensure that we are not speaking at cross-purposes.<br />
In paragraph 16 of the Committee’s report, the Clerk<br />
makes it very clear, in discussing clause 2(2), that<br />
“The provisions of this subsection make the Speaker’s consideration<br />
of confidence motions and the House’s practices justiciable questions<br />
for determination by the ordinary courts.”<br />
I do not think that the Clerk could have been clearer: it<br />
is subsection (2) that he is concerned about.<br />
Mr Harper: I had a conversation with the Clerk<br />
about the certification, with the majority being specified.<br />
The Government decided to place the provisions on the<br />
early general election in statute rather than relying on<br />
Standing Orders because, as I stated in the memorandum<br />
I placed in the Library on 13 September, we cannot<br />
achieve the policy objective by relying on Standing<br />
Orders, which can be changed by a simple majority—<br />
Mr Jenkin: That is not true.<br />
Mr Harper: Let me just finish this point, then I will<br />
take an intervention from my hon. Friend.<br />
Standing Orders can be changed by a simple majority.<br />
The Government’s view was that, if that was the case,<br />
the power to dissolve <strong>Parliament</strong> early would effectively<br />
be left with the Prime Minister.<br />
Mr Jenkin: I beg to suggest that, if the Minister had<br />
listened carefully to what I said earlier, he would have<br />
heard me reading from a letter I had received from