here - United Kingdom Parliament

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.