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867 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 868 [Mr Harper] we have been proceeding at a sensible pace. Indeed, today’s proceedings were added when the Government realised that Members wished to engage in the debate at greater length. Chris Bryant: The Minister seems to suggest that all the evidence apart from that of the Clerk of the House falls into the other camp. The Committee listened to the various witnesses and reached a rather different conclusion—that the purpose of the Bill needed to be achieved without the courts being invited to question aspects of the House’s own procedures or the actions of the Speaker—and urged us to move in a rather different direction from the one advocated by the Government. Mr Harper: The Committee was quite right. I agree that we need to ensure that the courts do not question those matters. In a moment I will deal with the amendments and the Government’s reason for believing that the language we have used about the well-precedented use of Speaker’s certificates prevents the courts from questioning the Act. My hon. Friend the Member for Harwich and North Essex observed that judges were not more interventionist. I believe there is evidence that there has been more judicial activism in judicial reviews of Executive decisions, but as far as I am aware there is no evidence that the courts have become more interventionist in challenging parliamentary proceedings. Executive decisions and decisions of Parliament are quite different from each other. Although the Supreme Court has a new name, it has no greater powers than the judicial Committee of the House of Lords that it replaced. I do not think that my hon. Friend’s concerns are well judged. My hon. Friend also referred to the European Court of Justice and the European Court of Human Rights. The European Court of Justice can deal with matters related to European Union law; nothing in the Bill would engage it. Similarly, the functions of the Speaker under the Bill do not engage any of the rights conferred by the European Court of Human Rights. I think it was only last week that the Joint Committee on Human Rights agreed with that when it said that the Bill’s provisions did not need to be brought to the attention of either House on human rights grounds. My hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman)—who is not in the Chamber, as he has had to fulfil a long-standing and important engagement to attend a meeting elsewhere in the House— expressed concern about the European Court of Human Rights. In fact, it has shown the utmost respect for parliamentary privilege. In a 2003 case, A. v. United Kingdom, it was specifically held that article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. The European Court of Human Rights strongly supported the contention that courts would not become involved in these matters. I agree with my hon. and learned Friend the Member for Torridge and West Devon, who said that owing to the very nature of these events—the fact that they would be politically highly charged—judges would not be keen to rush in and engage in questions that are rightly to be resolved by political rather than legal means. I have heard no evidence, apart from assertion, that courts would do anything different. Mark Durkan: I gave the example from 2001 when, on the third attempt, David Trimble and I were jointly elected as First and Deputy First Minister by the Northern Ireland Assembly. That was taken to the courts. Yes, the courts did not touch on issues connected with the Assembly’s standing orders, but they did entertain the suggestion that the Secretary of State had failed to use the power and duty, given to him under law, to set a date for an election if no First and Deputy First Minister have been elected after six weeks. The Secretary of State did not do so, claiming that because he had notice of the potential to elect us, which had been issued by the end day of the six-week period, he could interpret the deadline differently. The court did not throw out the case and the judges—competent, serious, senior judges— divided on the issue. In the light of that precedent, the assurance of the hon. and learned Member for Torridge and West Devon (Mr Cox) does not stand. 3.30 pm Mr Harper: The hon. Gentleman makes my point for me. He accurately sets out the fact that at issue was not a proceeding in Parliament—a decision of this House—but an executive decision by the Secretary of State. As I have said, there is lots of evidence that courts will challenge Ministers’ decisions, and one can argue about whether they will be right to do so; Ministers would probably argue they are not, but everyone else would probably argue that they are. The case the hon. Gentleman raises involved an executive decision; it was not a decision of this House or a proceeding in Parliament, and it is not protected under article 9. Mark Durkan: But what we are talking about is related to the closest equivalent in the Northern Ireland Act 1998 of the certificate powers being given to the Secretary of State. Sections 31 and 32 of the 1998 Act provide for the early Dissolution of the Assembly and early elections. They are the exact same powers, except that in Northern Ireland the Secretary of State has the powers of an “over-Speaker”, rather than their being vested in the Presiding Officer. They are the equivalent powers, however. Mr Harper: No, I think there is a rather crucial difference. The powers in that Act are given to a Minister— they are not proceedings in Parliament. That leads me nicely on to amendment 6— Chris Bryant rose— Mr Harper: But the hon. Gentleman is keen to get in. Chris Bryant: Sorry, but the Minister is using the phrase “proceedings in Parliament” as though it were a self-evidently clear concept, but a great deal of legislation and case law has analysed various different aspects of it and it is nowhere near as clear as he might presume. Mr Harper: No, and that leads to where I was going, which was to turn to amendment 6 and to explain why we are using the language of the device of a Speaker’s
869 Fixed-term Parliaments Bill 1 DECEMBER 2010 Fixed-term Parliaments Bill 870 certificate. There are precedents that have stood the test of time, which is why Professor Blackburn expressed the feeling in the quotation I read that parliamentary counsel had drafted the Bill well. My hon. Friend the Member for Stone (Mr Cash) tabled amendment 6 and my hon. Friend the Member for Harwich and North Essex spoke to it. I can see why they would want to use the wording in the Parliament Act 1911, but the Bill says the Speaker’s certificate is “conclusive for all purposes” and the Government do not think inserting the words “shall not be…questioned in any court of law” adds anything. The 1911 wording has, indeed, stood the test of time, but it used the language of the early-20th century. Later legislation used different wording. The House of Lords Act 1999 used exactly the wording we have used, which provides that certificates of the Clerk of the Parliaments on questions of whether an hereditary peer is one of the excepted 92 hereditary peers are conclusive. The provisions have worked well in practice, whereas wording consistent with the Parliament Act 1911 could bring into question whether protections in more recent Acts were meant to be an inferior sort of protection. We think that would be undesirable. Provided certificates are conclusive for all purposes, it is perfectly adequate to show that it is for the Speaker to decide whether the conditions for an early election have been satisfied, not for the courts or the Executive. The effect and the intention of the drafting are perfectly clear. Although the additional words in amendment 6 might appear attractive, they would not add anything to the protection in the Bill. There is no evidence or reason to think the courts would want to trespass on what would effectively be highly politicised issues or that they would not continue to regard matters relating to the internal operation of the House as “proceedings in Parliament”. I should also like to deal with the wording in amendment 6 that seeks to prevent a Speaker’s certificate issued under clause 2 from being “presented” to a court. I can see why my hon. Friend the Member for Stone is trying to do that, but it seems to me that that takes a step backwards. Being able to present the certificate to the court is the simplest and easiest way of informing the court that the conditions for an early election exist and the Speaker has made the decision. That stops the court being tempted to dwell on proceedings in Parliament; it has a clear piece of paper that explains that the Speaker has made that determination and the court need go no further. Mr Cox: Let us suppose that the Speaker issued a certificate that omitted one of the matters that the statute required him to certify. Would it not be open to a petitioner to argue in court that there had been a failure to comply with the conditions that made a certificate valid and that the court was entitled to examine whether it was a certificate before obeying the ouster that prevents it from challenging the certificate? Mr Harper: My hon. and learned Friend makes a point that relates to the use of certificates, but what he describes would be perfectly true of the certificate that the Speaker issues on money Bills and the certification that he issues under the Parliament Act. Those are well precedented and have stood the test of time. The courts have been content to hold that the fact that the certificate has been issued by the Speaker is indeed conclusive for all purposes and they have not sought to challenge it. Mr Cox: We are dealing with a fundamentally different sphere here. Whether or not a Bill is a money Bill is the kind of decision that is suitable only for a legislative Assembly, but on this matter the courts would regard themselves as guarding the right to an election, which is a fundamental right of the population of this country. If Parliament had prescribed that an election should take place and a certificate was defective because it did not stipulate one of the requisite terms, the courts may regard that as an area into which they ought to go to safeguard the right to an election. Mr Harper: If a certificate was issued by the Speaker, we would be having an election, not stopping one taking place. I do not think that my hon. and learned Friend’s concern that the courts would hold that the population were being deprived of an election would apply. The language used in the Bill was chosen for exactly the reasons I have suggested. We have used well-precedented, tried and tested language; it has stood the test of time. It is perfectly true to say that people can make groundless applications to courts on all sorts of things, but courts quickly dismiss them and prevent them from proceeding further. We are confident that these proposals are robust and will not have the effect that hon. Members suggest. In the few minutes remaining, I wish to discuss amendment 23, because the hon. Member for Rhondda (Chris Bryant) suggested that he wanted to ask you, Mr Evans, whether he could press it to a Division. The amendment proposes a 24-hour time limit for the issuing of the Speaker’s certificate. I can superficially see why that might be attractive, but it sets some conditions that might introduce elements casting doubt on the validity of the certificate if it were delayed, even if it were by only a few minutes, or if it were issued close to the time limit. Thus, the amendment would enable people to question the certificate. We should therefore rely on the standard practice, whereby the Speaker’s certificate is the conclusive provision. Given what I have said, I hope that hon. Members will not seek to press their amendments to a Division and that we are able to proceed with the debate. Mr Jenkin: I am most grateful, Mr Evans, for the opportunity to reply to the debate. I regret that I feel compelled to press this matter to a vote, but I feel that the Minister’s response has been wholly unconvincing. We are faced with adamant and clear advice from the Clerk of the House that the Minister has chosen to dismiss as irrelevant. Let me remind the House what the Clerk said: “The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.” That includes “what constitutes a confidence motion, the selection of amendments to such Motions and the consequences of their being carried”. He goes on to say: “As these would become justiciable questions, the courts could be drawn into matters of acute political controversy.” The Minister has not responded with anything substantive to defeat that advice.
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