Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Debate between Geoffrey Cox and Chris Bryant(11 years, 3 months ago)
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Chris Bryant
The hon. and learned Gentleman is always very persuasive and clever, so I hope he will be able to help me. Which persons, using his definition, would be required to register in a situation where, for instance, News Corp wanted to buy out the whole of BSkyB? It would not be any member of News Corp. It would not be the company itself, anybody it employed full-time, its lawyers or any of its consultancy companies, unless they were predominantly engaged in lobbying. Am I right to say that not a single person in that process would have to register?
Mr Cox
Let me come on to that question, because I want to tackle it, if it is appropriate to do so, in connection with clause 1. First, let me make it clear that the Opposition Front Bench spokesman, the hon. Member for Hemsworth, asserted in this Committee that the intention of Government amendment 76 was to exclude companies and employers. That is simply not right: that is a misconception. If the Opposition pour a torrent of misconceptions on the drafting of the Bill, their criticisms will not be listened to. I am anxious, as is the hon. Member for Rhondda (Chris Bryant), that some criticisms should be listened to.
The word “person” in clause 1, as proposed, would mean that anybody carrying on the business of consultant lobbying, whether they represented a partnership or a company, would have to register if they came within the definition of consultant lobbying. The problem the hon. Gentleman refers to is not a problem in clause 1; it is a problem in clause 2, to which I expect we are about to come. The problem in clause 2 is the definition of consultant lobbying, but clause 1 would cover employers and people who carry on a business of consultant lobbying through their employees. A company cannot carry on business in any way unless it be through human beings—their employees. Therefore, if a human being goes to lobby and is lobbying on behalf of a consultant lobbyist, as defined, then that consultant lobbyist, his employer, will have to register. There is no doubt about that—that is a fact.
Mr Cox
I will not give way, because I want to be quite short if I can.
The hon. Gentleman asked me a question and he made a legitimate point. What concerns me, although it may not be a point on clause 1; it may be a point on clause 2—I look with diffidence at the occupant of the Chair—is that an in-house lobbyist would not necessarily be caught by this definition. My suggestion and submission to those on the Government Front Bench is that in larger firms—for example, in major City law firms—it is now not uncommon for there to be specialist departments that deal with lobbying activities. It strikes me, with the greatest of respect to those on the Government Front Bench, that there is a strong case, where such a specialist department exists, for that department to have to register as a lobbyist.
Mr Cox
No, I will not give way at this stage. The hon. Gentleman must forgive me. I want to be short, and there is much to cover.
It may be argued that that position will encapsulate too wide a net. What concerns me is that that will offer the opportunity for the construction or the engineering of the structure of a business, so that what is a specialist lobbying company can become part of a larger business and thus avoid the need to register. That would be a regrettable element of manipulation, and bring into disrepute the passage of the Bill.
I hope that those on my Front Bench, in considering this question, will answer it at leisure and not straight away on the hoof. It cannot be right that specialist departments—set up, it may be, in larger entities—that are often the product not so much of caprice, but of chance accident in the evolution of companies and their structures, should elude capture by this Bill.
Mr Cox
No.
I hope that those on the Front Bench will consider what I hope they will believe is a constructive point. Let me say again that it is quite wrong of the hon. Member for Hemsworth to launch a tirade against those on our Front Bench by saying that clause 1 is being mischievously amended by the deletion of subsection (1)(b).
Chris Bryant
I will give way first to the hon. Member for Foyle (Mark Durkan), and then to the hon. and learned Member for Torridge and West Devon, although he was unkind enough not to give way to me a second time.
Chris Bryant
I think that that would be slightly to treat the legislation with contempt—so I am right up there with the hon. Gentleman.
Mr Cox
I do not know whether the hon. Gentleman has seen the Leader of the House’s amendments 93 and 94, which have just been drawn to my attention. On the face of it, those important amendments would go a considerable way towards dealing with the problems that my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch) and I have outlined. They would widen the scope, and would mean that only incidental lobbying activities would escape. That could not be said of any specialist department, so it seems clear that the Government are going some way towards responding to some of the concerns that have been expressed. If the hon. Gentleman has not read the amendments, he should have a look at them and think about how far they go.
Chris Bryant
Of course I have read the amendments on pages 658 and 659, but I think they would have exactly the opposite effect from what the hon. and learned Gentleman says. The concept of a non-lobbying activity is as interesting as the concept of a lobbying activity. That is why I think this Bill provides so many grey areas, and that, in turn, is why I can see that it would recommend itself to lawyers—to lawyers, I repeat.
European Convention on Human Rights
Debate between Geoffrey Cox and Chris Bryant(12 years, 6 months ago)
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Mr Geoffrey Cox (Torridge and West Devon) (Con)
I had not intended to speak, but a number of matters have been raised on which, it seems to me, some light might be thrown. The hon. Members for Perth and North Perthshire (Pete Wishart) and for Hayes and Harlington (John McDonnell) both questioned the effect of what we are doing, and it is on that point that I hope to shed some light.
This is a limited, practical measure, and one that I support, but I do not hold out an enormous degree of hope that it will have a substantive effect on the exercise of the courts’ discretion. Section 3 of the Immigration Act 1971 provides that the Home Secretary can amend the immigration rules, and it provides for the procedure, by way of negative resolution, by which those rules can be challenged. If they are challenged, the Act requires the Home Secretary simply to consider the points that have been made on the resolution that has disapproved them and alter, as she sees fit, the executive administrative guidance that those rules contain. Today, an attempt is being made to give some democratic force to the alteration of the immigration rules, which the Home Secretary could otherwise have done simply by an Executive act, in the hope that it will communicate to the courts the fact that there has been some consideration by Parliament.
I take the view that that might well have some effect on the courts beyond the fact that they will attach a degree of weight to the Home Secretary’s opinion in any event. It is well established in the human rights jurisprudence that a decision maturely taken by the Executive—in this case a Secretary of State who has a wide range of advice available to her and who can consult experts in the field—to change the existing immigration rules would already be accorded a degree of weight by the courts when they are considering what is a proportionate decision in the application of a specific human right. What the Home Secretary is doing today, which, I submit, the House should applaud, is giving the House an opportunity to voice its opinion on the changes she has decided to make.
Chris Bryant (Rhondda) (Lab)
The key point, as I think the Clerks have already made clear, is that we are not deciding on the totality of the changes; we are deciding only on the basis of what is in the motion being debated today. I would not want the hon. and learned Gentleman to conflate the two by mistake.
Mr Cox
The courts are more than capable of appreciating that what we are dealing with here is not primary legislation. Primary legislation will be accorded a much greater degree of weight—some people use the word “deference”, but the courts have disapproved it—because there is usually a period of consultation, a Bill might have been scrutinised before it was even brought to the House and a wide range of interests will have been taken into account in the process of scrutiny. A court is more than able to distinguish between a piece of primary legislation and a motion such as the one before us and to see the scope that the motion considers. That is why I say that this process is likely to produce a degree—probably a very modest degree—of additional weight to be accorded to the Home Secretary’s discretion. Her discretion would normally be accorded a degree of weight by the courts, and the motion might add a little more to the changes to the immigration rules than they would already have been accorded.
It is not difficult to interpret what is being done here. It is perfectly valid. The courts will not be deceived or hoodwinked. They will see what we are doing. They will no doubt read, if they take the trouble to go that far down the pages of Hansard, the profoundly principled position that the hon. Member for Hayes and Harlington took when he held up his hands and, with a cry of horror, said, “Not with my assent.” But the reality is that the motion will lend some modest substance to the already substantial decision that the Executive and the Home Secretary have taken. She should be applauded for, and congratulated on, giving the hon. Member for Perth and North Perthshire the opportunity to mount that—one hon. Member described it as a “rant”; I should never be so impolite—extraordinary, eloquent and passionate diatribe, to which he treated the entire House from his position on the Opposition Benches, representing the Scottish National party.
Fixed-term Parliaments Bill
Debate between Geoffrey Cox and Chris Bryant(14 years ago)
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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 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 that we are considering whether the courts would or would not be able to enter this territory will induce litigants, lobby groups and political groups to bring these very applications before the courts to test out the territory. It will not be long before the courts start to consider the extent to which the Bill allows them in, and the extent to which it does not. That is where the hon. Gentleman of whose constituency I am shamefully ignorant—
Mr Cox
The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted the recent judgment of Lord Phillips, and that is important because Lord Phillips made it plain that the courts will reserve the power to define the parameters of parliamentary prerogative and privilege. If the Bill remains enacted in the law of this country for a long period, which I rather doubt, there will inevitably be a point at which the courts are invited in and at which they will start to examine the extent to which they can and cannot become involved. Their view might not entirely coincide with that of the Government. For example, the question of whether a certificate is valid might arise. The Bill states:
“A certificate under this section is conclusive for all purposes.”
A court might well feel entitled to consider whether, as a matter of law, it is in fact a certificate. In the past, that is the way in which ouster clauses have been outflanked.
I am asking the Minister to consider this matter, and I am asking from the heart. I have noticed that, from time to time, he has found many of the interventions by Members not altogether to his taste. Perhaps the smile of the Cheshire cat is always seated on his face during these debates simply because of his serene command of his brief and his sublime confidence in the merits of this legislation. However, I ask him to address the consciences of many of the Members on his own side who have deep and sincere concerns. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) is among them, and when he rises to speak on matters of the constitution, he must always be listened to with respect. He may not be a lawyer but, by Jove, his instincts on the constitution are proud and honoured by a long tradition in this House. I pay tribute to him for standing up with such integrity and for such a long time for the traditional view of the constitution in this House. It is not a bad thing to stand up for tradition. It is not wrong to honour the way in which our forefathers constructed the constitution, the wisdom of it and the value that it has conveyed down the ages to the inhabitants of this country.
Will the Minister address this matter? I hope that I have expressed myself modestly by saying that I do not endorse or adopt many of the more exaggerated flights of fantasy that have occasionally been bandied about the Floor of the House. However, it surely cannot be denied that there is some risk and some legitimate cause for concern, when this matter seems to prey on the minds and the consciences of so many Members of this House who are motivated by entirely sincere reasons, rather than merely by the need to hear the sound of their own voice. I ask the Minister to address those concerns with the sincerity with which they have been expressed.