Draft EU Budget 2011

Debate between Geoffrey Cox and William Cash

Wednesday 13th October 2010 Commons Chamber

[Mr Cash]

It will, indeed. I shall make no response to that absurd intervention.

We must achieve our objectives, which are not only to prevent any increase in the budget, but to reduce it. I say that to my hon. Friends as one who, I think, can undoubtedly claim to have fought these battles relentlessly, persistently and consistently for the best part of 25 years—and, if I may say so, with some degree of success in establishing the parameters within which we are now able to address the European issue. In a moment I shall mention what happened at the European Scrutiny Committee this afternoon, merely to illustrate the progress that we have already made in the few weeks that I have had the honour of being the Committee’s Chairman. The whole process has to be conducted in an effective and orderly manner. Otherwise, it plays into the hands of those such as the right hon. Member for Rotherham (Mr MacShane), who want to pretend that somehow there is no justification for our adopting the position that we need to adopt. Tortuous and tedious as it is, the most important thing is to get it right. We have to get the blocking minority if we want to move from wanting to stop the increase to achieving the reduction that follows from it. Let us be responsible about this.

I do not have the slightest objection to the sentiments that lie behind the other amendment. It bothers me, however, that we have two amendments that appear to compete with one another, but in fact convey the same ideas, yet one is orderly while the other is disorderly. I leave it at that; it is for my hon. Friends to judge.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

Does my hon. Friend accept that Mr Speaker has already said that the amendment in the name of my hon. Friend the Member for Clacton (Mr Carswell) is in order; that there is nothing inherently unlawful about it; that there is no reason, based on either law or principle, why Members of this House should not vote for it; and that it is therefore perfectly in order?

[Mr Cash]

When I say that the amendment is disorderly, I mean that it would, in my judgment, make it more difficult for us to achieve our objectives. I was not referring to it as being disorderly within the framework of the procedures of the House. I make that distinction very clear.

Our net contribution to the European Union is rising from £6.4 billion this year to £8.3 billion in 2011-12 and £10.3 billion in 2015, and our gross contribution is rising from £14 billion to £19 billion. The Budgets Committee is placing a demand on member states to open negotiations on new own resources; the hon. Member for Birmingham, Edgbaston (Ms Stuart) says that that is a

“full part of the overall agreement on the 2011 budget”.

It is reported in the Financial Times that MEPs are even considering an amendment to

“open the way to establish a European tax, making the institutions less reliant on contributions from national governments.”

On top of the budget, the European Parliament is shortly expected to vote on proposals to extend maternity rights to 20 weeks at full pay, which will cost the British Government an extra £2.5 billion a year.

It will be well understood in the House that I am gravely concerned about the developments in this direction. I merely want to be sure that the Government, as well as being able to negotiate this particular, rather difficult round, are able to get stuck into reducing not only the budget itself but the functions that lead to that budget, because the two run together—it is like Parkinson’s law.

Fixed-term Parliaments Bill

Debate between Geoffrey Cox and William Cash

Monday 13th September 2010 Commons Chamber

[Mr Cox]

I will in a moment, if I may.

So again I say to the House, it is not simply a done deal. It is not an open-and-shut argument that fixed-term Parliaments are a good thing. The flexibility of our constitution, the ability of the Prime Minister to seek a Dissolution, is not always a bad thing; it can be a good thing. True it is that in recent times Prime Ministers have tended to abuse it. True it is that in recent experience they have perhaps lessened the dignity of their office by declaring elections in schools and by dithering over the timing of a general election. But that does not mean that we ought not to consider carefully a fundamental change to a fixed-term parliament. My plea today is that we do not regard this as simply a subordinate consideration. The way in which this has been introduced and the lightness with which the House is being expected to deal with this critical question troubles me.

In my submission, the existence of the Queen’s right to dissolve is in some circumstances very important. That may be why in Canada the prerogative of the Queen was preserved. Although they introduced a fixed-term parliament, the Canadians decided to retain the prerogative of the Queen to dissolve Parliament. We should think long and hard before we make a change of this kind. The role of the monarch is an important one and it is not one that we should simply discard.

I have a number of other observations about the Bill. I am troubled about the length—five years. That means that it postpones for five years, in perpetuity hereafter, the ability of the people of this country to pass their opinion upon the performance of a Government. That is potentially too long. The people of this country, who have had no opportunity to be consulted on this issue, are entitled to be consulted in greater depth than we have done hitherto, through the processes that this House has for the taking of evidence and through the ordinary channels of political communication.

I am troubled about the imprecision in what is intended in clause 2 as regards a motion of no confidence. Perhaps this can be tackled in Committee. The provisions seem to give rise to the realistic prospect that the courts may be tempted to invade on these matters. Let me say a few words about privilege. I agree with the right hon. Member for Blackburn that it is probably unlikely that the courts would wish to intrude on a matter so pivotal to the workings of Parliament as the Speaker certifying that there was a requisite majority under clause 2, but we cannot rule it out. As the Clerk of the Parliament has said, once we inscribe in statute, the courts are automatically engaged. It is their constitutional function to interpret a statute, and I cannot think of a single instance where the courts have declined to entertain an arguable interpretation in an arguable case.

It is true that the courts may say, after deliberation, and after appeal upon appeal, eventually in the Supreme Court, that they have declined to consider whether the certificate issued by the Speaker is indeed a valid certificate. However, this House has tried, on many occasions, to devise so-called ouster clauses seeking to foreclose the jurisdiction of the court on a judicial review, and I cannot think of a single case in which those clauses have prevented the court from saying, “Okay, we will get involved only in certain limited circumstances, but where it is, for example, a question of the precondition for the exercise of the discretion, we will get involved.” The Clerk gave a very good example when he pointed out that although clause 2 says that a certificate shall be “conclusive for all purposes”, that does not, in theory, prevent the court from inquiring into whether it is a certificate at all.

The courts have adopted precisely that analysis in the case of two or three statutes where the House has sought to exclude the jurisdiction of the courts and they have said, “No, it is our duty to scrutinise and to interpret the meaning of a statute, and where it is a question of whether the essential, fundamental preconditions are met for the exercise of a discretion, we will see whether they have been met.” It would be an act of voluntary self-restraint by the courts to deny themselves the jurisdiction to examine the statute to see whether the Speaker had complied. It is likely that they would exercise that voluntary self-restraint, but one cannot exclude the possibility that as time goes on—

[Mr Cash]

I am following my hon. and learned Friend’s arguments with great interest. In the Parliament Acts, the expression about whether the provision is conclusive for all purposes is reinforced by the words,

“and shall not be questioned in any court of law”.

It is curious that those words are omitted from this Bill given that would provide an additional safeguard and put the courts even more on notice that Parliament had instructed them not to question any provision in any court of law.

[Mr Cox]

I take my hon. Friend’s point. However, in my experience of judicial review proceedings, no form of language has been completely successful in ousting the court’s examination of a statute. This is a well-known phenomenon in administrative law. The House has, on several occasions, tried its very best, through expressions of the character that he mentions, to oust the jurisdiction of the courts, but the courts have said no. In this case, the Bill says that a certificate shall be “conclusive for all purposes”, but the courts would be likely to say, “That means ‘a valid certificate will be conclusive for all purposes’, and we are entitled to consider whether this is a valid certificate.” It would be an act of purely voluntary self-restraint if the court said, “In these circumstances we will treat this statute as non-justiciable.” I can think of no examples of where the courts have yet done that. Certainly, they have held certain things to be non-justiciable, but usually because the duty is vague and the expression of the statute is more aspirational than definitive. In this case, it is clear what conditions are set out for the Speaker to pass a valid certificate for the purposes of an early election.

In my judgment, it is not possible to rule out the courts’ involvement. If that is right, we should pause. I say this to the Minister: please let us think long and hard about further consideration of this Bill, because it smacks of undue and undignified haste. I have spoken about the duration of the Parliament, and the monarch’s integral and pivotal role in deciding on either declining a Dissolution, agreeing to a Dissolution or insisting on a Dissolution is vital. The Bill’s imprecision on the nature of a no-confidence motion is vital. Why should we not pause in relation to fixed-term Parliaments? Why do we have to make law for the long-term future? It is regrettable, and I have great trouble with this Bill, as I did with last week’s Bill about the alternative vote referendum.

As an Opposition, the Liberal Democrats and the Conservatives frequently criticised the then Administration for piecemeal, incoherent and fragmentary reform in constitutional affairs. Why are we repeating that error? We should be taking a long-term, coherent view of our constitution. How can it be right that we decide the electoral cycle of this House not in conjunction with a consideration of what a reformed Second Chamber would look like? How can it be right that we decide the electoral system of this House not in conjunction with the electoral system that we shall use for the Second Chamber? That would be joined-up, mature and wise constitutional law-making; this looks like something very different. I say to my hon. Friend the Minister that it is embarrassing to be on these Benches having to listen to a Bill of this kind being put forward in such a way. I had hoped for better from this Government.