Northern Ireland Protocol Bill

Geoffrey Cox Excerpts

Committee stage
Wednesday 13th July 2022 Commons Chamber

[Sir Jeffrey M. Donaldson]

I will come to the Good Friday agreement in my remarks, but I simply say to the hon. Member that there is a difference of view as to how we interpret what is required in terms of consent. Lord Trimble, as one of the key negotiators of the Belfast agreement, has stated very clearly that the principle of consent does not just apply to the final question as to whether Northern Ireland should remain part of the United Kingdom. The term “constitutional status” extends to these circumstances, where Northern Ireland’s constitutional relationship with the rest of the United Kingdom has been changed by virtue of the subjugation of the Acts of Union.

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

The right hon. Gentleman knows with what affection I regard him, his party and Northern Ireland, having had the privilege of being Advocate General for Northern Ireland. What he is saying is a very good case for triggering article 16, which was the entire purpose of the inclusion of article 16 in the protocol. It is not necessarily a good reason, however, for changing the entire basis of the treaty, including writing out the jurisdiction of the Court of Justice of the European Union, and so on. How do we get from a position where we have societal impacts, with which I am perfectly willing to agree, to a position where we virtually rewrite the terms of a treaty that we solemnly signed only two and a half years ago?

[Sir Jeffrey M. Donaldson]

I have great respect for the right hon. and learned Member, and I know of his affection for Northern Ireland. I think back to those very difficult and challenging days when this House was dealing with the pre-departure discussions about the laws that would have to be put in place around the treaty to leave the European Union. I thank him for the time that he took to understand the situation in regard to Northern Ireland.

I would say two things in response to the point that the right hon. and learned Member has, understandably, made. First, the Command Paper published by the UK Government one year ago last July set out the basis on which they believed that the conditions had been met for article 16 to be triggered. We have been very patient. We have waited and waited, and we allowed time for the negotiations with the European Union to go forward in the hope that the EU would show more flexibility. I do not doubt the integrity of Maroš Šefčovič as the lead negotiator, but the difficulty is that his negotiating remit is so constrained that his ability to deliver the change that is required to meet the need—to resolve the difficulties created by the protocol—is so limited that in the absence of a change of his remit, I do not think those negotiations will get anywhere.

Article 16 and the triggering thereof is a temporary measure; it is not a permanent solution. What I need, what Northern Ireland needs and, especially, what business in Northern Ireland needs is certainty. That is why we believe that the Government are right to bring forward proposals for a longer-term solution, and not just to go for the temporary fix—the sticking plaster—of article 16. That will create more uncertainty rather than giving us certainty, and it is certainty that we are looking for. That is why I think that what the Government have done is right in the circumstances.

--- Later in debate ---

[Sir Geoffrey Cox]

How would the hon. Gentleman propose to negotiate to permit the voters of Northern Ireland to have a say in the laws that are being made for them?

[Peter Kyle]

It was a Labour Government who delivered the framework for the Good Friday agreement in the first place. We respect devolution to Northern Ireland. The key thing is that, yes, Northern Ireland has been suffering the existential challenges posed by the protocol, but, fundamentally, Northern Ireland has been suffering from neglect. When the Executive collapsed, there was no visit from the Prime Minister for five months; there were no multi-party talks, in Downing Street or in Belfast; there was no attempt at getting people around the table; and not a single statement was made to this House about Northern Ireland by the Northern Ireland Secretary at the time, the Prime Minister or the Foreign Secretary. Just imagine for one second what would happen if the Welsh Senedd or the Scottish Parliament collapsed and this House of Commons went five months before there was any action whatsoever. The only time the Prime Minister visited Northern Ireland was once the Assembly failed to be assembled, after the elections. At that point, when the difficulties in Northern Ireland became so deeply entrenched, the Prime Minister finally went over there for one quick, fleeting, in-and-out visit. That is not good enough. We know that Northern Ireland—all of Northern Ireland—deserves the full attention of the UK Government. It also needs the attention and engagement of this House, where Northern Ireland parties can have their say regularly, on an ongoing basis, not just once a month at oral questions.

[Peter Kyle]

I suggest that had the Prime Minister gone to live in Northern Ireland and gone to camp out there—bearing in mind that he is the person who went to Northern Ireland and promised that over his dead body would there be a border in the Irish sea, and bearing in mind what we now know he has been engaging in and the squalor with which he delivered the duties of his office, based on the resignation letters of members of his own Government—he is not the person who could ever have hoped to muster the statecraft to deliver the settlement that Northern Ireland needs.

[Sir Geoffrey Cox]

rose—

[Peter Kyle]

I am going to finish now, so that we can hear directly from Conservative Members. We have always to remember that the Conservative party was the one that enabled, delivered and sustained that Prime Minister in office, and all the time that was done, the politics of Northern Ireland did not just fail to move forward—it sank. So this Bill, from that Government, who their leadership candidates are only too happy to support, is an affront to the UK’s values and to our international interests, at home and abroad. This Bill will not deliver the progress that is needed in Northern Ireland and it will only harm our interests abroad.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

Order. We had three hours for this debate. The first four speeches have taken more than two hours. We have about 55 minutes left and 10 people wish to speak. I do not have the power to put on a time limit, but you all have the power to act decently, and speak for four or five minutes and no longer. I hold you all to honour. You should take four to five minutes, otherwise you are preventing other people from speaking. I call Sir Geoffrey Cox.

[Sir Geoffrey Cox]

I will be quick. I have listened with fascination to the contributions and speeches made this afternoon. If I thought that the Bill would produce a durable and permanent solution, I would support it, but I do not believe it will produce a durable and permanent solution. The fact is that we cannot impose on Northern Ireland, or on any other party to a treaty that we signed, unilaterally a political solution. A political solution has to be reached politically; it cannot be imposed by this House through legislation. The EU—like it or not—and the Irish Government are a party to these negotiations. Unless we are able to achieve assent to the arrangements that we propose, they will not last. It will have to be resolved ultimately by agreement. It is much the same as the Northern Ireland Troubles (Legacy and Reconciliation) Bill—another attempt by the Government to impose a political solution on Northern Ireland, without first having reached the solution and then produced the legislation that works out and implements that solution. I do not believe that this legislation will produce a permanent solution.

We come to the question of necessity. I am not prepared to say that there is an impossibility that the basis of necessity could not justify the actions that the Government are taking. I have the gravest of misgivings about it, and the deepest of scepticism about whether or not it affords a proper legal basis as a matter of international law, but we have not seen the evidence. It is possible that the Government and my right hon. and learned Friend the Attorney General have seen some evidence that we have not seen that could crystallise at least the plausible case that this action needs to be taken.

I support the amendment tabled by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), but the fact of the matter is that even necessity is not a legal basis for a permanent solution. The doctrine of necessity in international law requires the measures that have been implemented as a necessity to answer the urgent and imminent peril to be removed as soon as the basis for taking action on the grounds of necessity has gone. Indeed, necessity does not even remove the breach; one is still in breach of the agreement. Necessity simply removes the wrongfulness, which further emphasises the fact that necessity cannot produce a permanent solution as a matter of international law. Only agreement—only the reaching of a political solution—can do so.

Nobody need tell me about the politically tone deaf intransigence of the European Union in negotiation. I recall vividly in my visits to Brussels in the early months of 2019, saying to Michel Barnier, “But do you not see, Michel, that this produces an anomalous situation? If a farmer in Northern Ireland wants to take up the issue of cattle tagging, to whom does he go? When the law is imposed by the European Union, the only place he can go is either to Brussels itself or to Dublin, and how will that feel for one whole section of the community of Northern Ireland?” I must tell the Committee that the European Union representatives reacted as if they had been stung by wasps. We have to understand that those at the European Union believe the protocol to be the very zenith of creative diplomacy. They cherish and prize it, as if it were their own child. But that does not mean that we do not need to engage in the patient effort—maybe it will take months, maybe years—gradually to make them see that this is an unsustainable situation.

What we should not do is reach immediately for a solution, over which there are the gravest doubts as to its efficacy as a matter of international law, over which there are the gravest doubts about the sincerity and good faith of the Government—for I take it that the Government have advanced their case on the basis of necessity sincerely. I assume that they must mean, and genuinely mean, that they genuinely believe that there is a respectable case on the basis of necessity. If they do, why should we not at least be told the evidence—the evidence! We can gist it, we can summarise it if it is security sensitive, but at least let this House acquit itself of the doubt that exists over its legal efficacy as a matter of international law. It is no light thing for this House to take a step—

[Sir William Cash]

rose—

[Sir Geoffrey Cox]

No, I will not give way. Too many need to speak.

It is no light matter for this House to take a step that is in contravention of its international obligations. The dignity of this nation rests upon its word being seen to be implemented once it is given. Therefore, I think it a small thing—a reasonable thing—that my hon. Friend the Member for Bromley and Chislehurst has asked.

My right hon. Friend the Foreign Secretary talked about Members as patriots. I do not believe that there is a person in this House who is not a patriot, not a person in this House who does not believe—[Interruption.] There may be some exceptions on the Opposition Benches, but I certainly do not believe that of those on the Labour Benches. The fact is that I want to give credit and the benefit of the doubt to everybody, but patriotism can also be the belief that we should stand by our word and that we depart from it only if there is a proper legal basis for doing so.

There is plenty of precedent for the Attorney General coming to the House—I should know, I did it—to answer questions about the international law compatibility of a measure in this House. Indeed, it goes way back, I think, to either the Wilson Government or the Heath Government. Attorneys General would come to the House to answer questions on the compatibility of statutes with international law. I invite the Minister, my right hon. and learned Friend the Member for Northampton North (Michael Ellis), to invite the Attorney General to come and answer those questions, because, in my judgment, it is an obligation to the House. The Attorney General has a residual duty to advise the House on matters such as this.

I say to my right hon. and learned Friend that I will not be able to support this Bill—that comes as no surprise—but I sympathise with the plight in which the Government find themselves. We should all be a lot better if we united in this House to besiege the European Union with requests so that it sees that it must effect real change in this protocol. That is why I asked the hon. Member for Hove (Peter Kyle) what is his solution to the democratic deficit of which my hon. Friend the Member for Stone (Sir William Cash) has properly and accurately spoken.

These are really intransigent, intractable problems. It is no use sitting, as the hon. Member for Hove does, attacking those of us on the Government Benches for not having solutions if he just talks more and does not propose constructive, new replacement agreements that might fulfil the legitimate wish of the Unionist community to feel that they are not separated and segregated from the rest of the kingdom, while doing justice to the European Union’s desire to protect its single market.

[Peter Kyle]

New Zealand has been able to negotiate quite diligently and swiftly a veterinary agreement with the European Union. Turkey has been able to agree a customs arrangement with the EU. There has been no law breaking, no storming out of negotiations; representatives sat round the table and got it done. Why does he think that this Government have failed where other Governments have succeeded?

--- Later in debate ---

[Sir Geoffrey Cox]

Dame Eleanor, you rebuke me entirely justly. Let me see if I can answer the question. Yes, of course there are trade mitigations, and I had a sincere hope two and a half years ago that they would be resolved in the joint committee. They have not been resolved in the joint committee.

[Peter Kyle]

Why?

[Sir Geoffrey Cox]

I do not know, but it is no use the hon. Gentleman’s using the tactic of deflection to try to put me off my question to him. The democratic problem is what I put to him, and Labour has no answer to that problem. If the party is to be taken seriously, it needs concrete proposals that might work. On that note, Dame Eleanor, I will conclude.

Dissolution and Calling of Parliament Bill

Geoffrey Cox Excerpts

Committee stage & 3rd reading
Monday 13th September 2021 Commons Chamber

[Chloe Smith]

Thank you very much indeed, Dame Eleanor. I shall endeavour to do that, and I hope you will bear with me while I ensure that I cover all that material.

Let me begin at the beginning, with clause 1. There is consensus throughout the House that the Fixed-term Parliaments Act 2011 has proven to be not fit for purpose and has been damaging to effective and accountable government. The experience of 2019 in particular showed us that the Act was flawed and ran counter to core constitutional principles, and was therefore damaging to the flexible functioning of our constitution. It was unique legislation and it did not work. We saw how, in 2017, a Government who commanded a majority in the House of Commons were able to call an early general election with ease, irrespective of the Act’s intentions.

The events of 2019 then demonstrated how the 2011 Act could obstruct democracy by making it harder to hold a necessary election. The Act’s prescriptive constraints, such as the threshold of a supermajority requirement for a general election and the statutory motions of no confidence, created an untenable situation in which the Government could neither pass vital legislation through Parliament nor call a new election. The result was parliamentary paralysis at a critical time for our Government. The introduction of bespoke primary legislation that circumvented the Act and let us hold a general election in 2019 was the final indictment of the Act.

The Bill therefore repeals the 2011 Act and returns us to the tried and tested system whereby Parliament will automatically dissolve after five years, if it has not been dissolved earlier by the sovereign exercising that prerogative power at the request of the Prime Minister. The key argument is that in doing so it will help to deliver increased legal, constitutional and political certainty around the process for the dissolving of Parliament. Clause 1 repeals the 2011 Act and in doing so delivers, as I have already mentioned, on both a Government manifesto commitment and a Labour manifesto commitment to do so. I therefore commend the clause to the Committee.

Clause 2 makes express provision to revive the prerogative powers that relate to the dissolution of Parliament and the calling of a new Parliament. That means that Parliament will, once more, be dissolved by the sovereign at the request of the Prime Minister. By doing this, the clause delivers on the Bill’s purpose, which is to reset the clock back to the pre-2011 position with as much clarity as possible. The clause is clear in its intention and in its effect. As the Joint Committee on the Fixed-term Parliaments Act put it, the drafting of clause 2 is

“sufficiently clear to give effect to the Government’s intention of returning to the constitutional position”

that existed prior to the passing of the 2011 Act.

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

Will my hon. Friend help the House in respect of whether the Government acknowledge the existence of the Lascelles principles? If they do, what is the impact of clause 2 on those principles?

[Chloe Smith]

Of course the Government and I acknowledge the existence of those principles; they are a historical fact in and of themselves. I refer my right hon. and learned Friend to the fact that we have said consistently throughout the Bill’s preparation and progress so far that we believe that now is the time for the underpinning conventions of the prerogative power to be debated and, indeed, restated. The Government have contributed to that by publishing some Dissolution principles at the beginning of the Bill’s journey. We think those principles form part of a dialogue that continues not only between the Government and Parliament but with the wider public as well. I hope that the work of this Committee today and the work in the other place will together form part of the continuation of that historical tradition of there being an understanding of the conventions that underpin the prerogative.

--- Later in debate ---

[Brendan O'Hara]

I am sure I am not the only person in this House who can see the irony of how taking back control supposedly has led us to a position where Parliament is being neutered by the Executive, and the people who were most loudly proclaiming “Take back control” are the people holding the scissors and doing the neutering—if that is not too much of an image, Mr Evans.

If the Bill passes, as well as there being no parliamentary or legal scrutiny, an active debate will still rage about whether the monarch’s prerogative powers would return to exactly as they were in 2011. I notice that, in her letter to the Chair of the Public Administration and Constitutional Affairs Committee, the Minister acknowledged that

“there remains a role for the sovereign in exceptional circumstances to refuse a Dissolution request.”

But the monarch’s prerogative powers are now being enshrined in statute, having been removed by statute; they are now being restored by statute. So what exactly are the exceptional circumstances in which the monarch can refuse a Dissolution request? How can the Lascelles principles, which we heard earlier were prerogative powers, now be statutory powers? I cannot see how this returns us to the position we were in in 2011.

Therefore, we have been and will continue to be extremely uneasy about the insertion of the ouster clause making the Government’s action in relation to the dissolution of Parliament non-justiciable. As I said, we share the concerns of many Members across the Chamber that the repeal of the Fixed-terms Parliaments Act would not automatically take us back to the position of 2012 and we need a lot more clarity about exactly what legal position we would be in.

The Chair of the Public Administration and Constitutional Affairs Committee pointed out in a letter to the Minister:

“The Fixed-terms Parliaments Act was passed and the consequences of this cannot simply be wished away.”

I note that, in her response to the Committee Chair, the Minister accepts that there is an academic debate about the issue, but she seems to believe the opinion of her academics that the courts

“will be required to act as if the Fixed-term Parliaments Act had never been enacted”

and that they will be

“required to pretend that it never happened.”

It is a ridiculous situation and an extremely unsatisfactory position in which we find ourselves. For years, as my hon. Friend the Member for Glasgow East (David Linden) said, we have heard this Government talk about taking back control and the importance of parliamentary sovereignty. This is an early test of how this Parliament takes back that control, and the Executive are legislating to prevent it from happening. If the Bill is passed as it stands, Parliament and the judiciary, and arguably the monarch’s traditional role, will no longer be in play, and the decision to dissolve this place and call a general election will be entirely in the hands of the Prime Minister, who may call one when it is politically expedient so to do. That is not how a modern liberal democracy should function, and that is why we will not be supporting the Bill.

Back in January, both Lord Sumption and Baroness Hale were unequivocal in their evidence that the minimum safeguard required in the event of an ouster clause being put in place was the inclusion in the Bill of a time limit on the moving of writs for parliamentary elections. However, as it stands, there is no such provision in the Bill; six months on, the Government have not produced anything of the sort, and the original clause remains. In effect, that allows the Government to decide the length of a period of Prorogation, the gap between the Dissolution of Parliament and an election, and indeed the gap between an election and the first sitting of a Parliament. That is deeply worrying. The Government had an opportunity to take the advice of many learned people and improve the Bill. They refused to take that advice, and I fear that it is sinister and troubling that they did not.

[Sir Geoffrey Cox]

It is a great pleasure to follow so erudite and intelligible a speech from the hon. Member for Argyll and Bute (Brendan O'Hara).

I have an experience that is very rare in my political career—a sense of complete vindication. I voted against the Fixed-term Parliaments Act in 2011, when it was brought in, and I seem to recall saying then what I hear the Minister saying from the Front Bench now: that it would not work and that it was an abominable intrusion and distortion of our constitution. I see this Bill as a welcome correction that brings our constitution back to the fundamental principle, which has existed for many years, that, with the important exception that the monarch has the right to speak his or her mind at the time the Prime Minister requests a Dissolution, and in the last resort even perhaps to decline it—although it would not be known for many years that he or she had—it should be the case that the Prime Minister can advise Her Majesty to dissolve the House. We are at last returning to sanity and, with the pardon of the hon. Member for Rhondda (Chris Bryant), to normality when it comes to the constitution.

However, I say to the Committee and the Minister that there is an issue that troubles me. It seems to me that, when we presented our manifesto to the country in 2019, we did not only promise that we would restore the balance of our constitution by repealing the Fixed-term Parliaments Act. We presented the country then with a constitutional programme, or at least the willingness to look fundamentally at our constitution and to consider deeply whether we should restore to a more Conservative and a more traditional basis other aspects of our constitution, too.

In welcoming this Bill, therefore, I say to my hon. Friend the Minister that I hope that it is not the last measure that we will introduce in the portfolio that she occupies. At the moment, I look at our offering and I see this Bill, which I fully support, I see the Elections Bill, which I also support, and I see the Judicial Review and Courts Bill. I hope we are not going to be quite so timid as to present that as our sole offering to the country. In 1997, the Labour party was elected. One thing one can say about that Government is that they came in with a coherent, radical plan for the constitution, and they then enacted it with complete ruthlessness, and with complete disregard for Opposition voices. I was in the House some years later, and I recall vividly how the Labour party steamrollered its constitutional changes, including the Constitutional Reform Act 2005, through this House with very little by way of consideration and regard for alternative voices.

We now have a majority comparable to that, and I hope that we will not squander that opportunity. There are important things that we should now be doing. I have some sympathy with the plea this afternoon by the hon. Member for Rhondda that we should be considering Prorogation. So we should. We should be considering whether the Supreme Court’s decision in Miller No. 2 should stand. We should be considering whether other decisions of the Supreme Court should be allowed to stand. There comes to mind, for example, the Adams case, in which Mr Gerry Adams was effectively acquitted of his convictions in 1975 because the Supreme Court held that the Carltona principle in effect did not apply to the decision then taken. That, in my view, is a matter that this House ought to be reviewing.

I say to right hon. and hon. Members and to my friends on the Government Benches that we must not regard the constitution as an area that is too complicated for us to go into. We must not accept the liberal consensus, as it is no doubt called, upon which the new Labour Government in ’97 traded. We must not accept that these things are permanent features of our constitution. They were not introduced with our consent, and we have every right, with the mandate from the people that we now have, to reconsider them.

I say to the Minister that I applaud this Bill, and I applaud her particularly. I was impressed, if I may say so, throughout the course of her presentation by how deeply competent and how completely on top of her brief she was. Thank heavens for such a Minister.

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

Order. Sir Geoffrey, I have given a bit of latitude, but do you intend to speak to the clauses, new clauses or amendments?

[Sir Geoffrey Cox]

It is stand part that I am addressing, Mr Evans.

This Bill should warmly commend itself to those on both sides of the Committee. My only caution—my only plea—is: let this not be the last word we say upon the British constitution.

[Chris Bryant]

It is a delight to follow that Third Reading speech.

I have enjoyed today, not least because it is such a delight to be vindicated. I feel as if I have been saying the same things for 20 years. Some of what the Minister said today, if we put the word “not” in, was what she said 10 years ago, which is kind of entertaining but rather irritating.

I am not going to speak at length, but we have to go back to fundamental principles when we are talking about the constitution. I like Parliament sitting. It is good for Governments to face the scrutiny of the Commons elected. Long interruptions are a bad thing. We take a long time to get a Parliament going after a general election, and now, with a long general election, as the right hon. Member for Basingstoke (Mrs Miller) referred to, it can be several months that parliamentary scrutiny is effectively out of action, before Select Committees are fully set up and all the rest of it.

The Executive and the Parliament need to be in balance with one other. There is a real danger that we are moving in the direction of what I call an over-mighty Executive. The Leader of the House in particular has what I call a high theological understanding of government—the Government are always right, by definition. In our system, the Government have considerable power. That is why some have called it an elected dictatorship.

The constitution should always stand the test of time and the test of bad actors. We always presume we will have a good monarch. We have had bad monarchs in the past. We presume we will always have an honourable and good Prime Minister. We might have a bad Prime Minister, who might choose to—[Interruption.] I am being ironic here. We might have a Prime Minister who deliberately chose to subvert the constitution and use it to subvert democracy.

Prorogation (Disclosure of Communications)

Geoffrey Cox Excerpts

Monday 9th September 2019 Commons Chamber

[Mr Grieve]

I am afraid this classically illustrates the problem that we now have: these extraordinary utterances —pronouncements—from No. 10 Downing Street that bear absolutely no relationship with the operation and conventions of our constitution. It is impossible to know whether they are froth, whether they are Mr Cummings’s thoughts, or whether in fact they represent some settled policy view of Government, in which case this country is facing, frankly, a revolutionary situation in which this House has to exercise the utmost vigilance to ensure that our rights and privileges are not simply trampled upon.

I am very mindful of the fact that in this current crisis we are a divided country and a divided House, which pains me very much. I would like to work, even with those with whom I disagree such as some of my right hon. Friends on the Front Bench, to try to get this matter resolved in a way that is compatible with healing some of the divisions in our country, but that simply is not going to happen if the atmosphere of confrontation keeps being ratcheted up, slowly undermining the institutions that are the only props of legitimacy—that is the truth, for all of us—and in which everybody is happy to go into greenhouses and chuck bricks all over the place but expect the structure to provide some shelter afterwards.

[The Attorney General (Mr Geoffrey Cox)]

I have been listening with great care to my right hon. and learned Friend’s observations and part of his draft Humble Address troubles me. What legal right do the Government have to require their employees to give up private email accounts and personal mobile numbers? If there is no legal right—I imagine he would contend that there is not—how on earth would the Government enforce the Humble Address if they desired to do so?

[Mr Grieve]

These are Government employees. In the course of their work it is their duty to observe the civil service code and to comply with its requirements, including, I respectfully suggest to my right hon. and learned Friend the Attorney General, not using private means of communication to carry out official business.

--- Later in debate ---

[The Attorney General]

rose—

[Mr Grieve]

And beyond that—

[The Attorney General]

rose—

[Mr Grieve]

No, I will continue. [Interruption.]

[Mr Grieve]

I will give way to my right hon. and learned Friend in a moment.

In addition, it is a question about what this House requests. I am perfectly aware that sometimes I may say that the Government may be acting abusively, so I am the first to understand that there is a capacity for this House to act abusively. However, what is being asked for, and ought to be respected by any self-respecting Government employee, is that if they are asked to look and see whether they have carried out a communication, within the relevant request, that goes to their official work, they ought to be willing to provide it. It should not be a question of coercion; it should be a question of willingness. If we move from that, that will be the destruction of another convention under which this country has been run, and it will be greatly to our detriment.

[The Attorney General]

rose—

[Kevin Brennan]

On a point of order, Mr Speaker—

--- Later in debate ---

[Mr Grieve]

I give way to my right hon. and learned Friend the Attorney General.

[The Attorney General]

My right hon. and learned Friend has just refined the Humble Address to confine the request for personal mobile information and personal private accounts only to communications that ought to have been carried out as official business on official accounts. The difficulty with the Humble Address that I invite him to consider is that it is a blunt instrument and that, in truth, what this Humble Address requires is careful refinement so that it complies with legal rules. This Humble Address has no binding legal effect on individuals. It potentially has a binding effect on the Government, if they observe it, but not on individuals. There seems to be a risk that it will trespass upon the fundamental rights of individuals, as it is currently drafted.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Geoffrey Cox Excerpts

Monday 9th September 2013 Commons Chamber

[Jon Trickett]

Again, my hon. Friend makes an important point. The truth is that we will have no idea whom they are working for. We will know who their clients are, because that is required on the register, but we will have no idea who employs them. That seems to me to be a rather critical question to ask. For those people now on the voluntary register and operating to an ethical code, we know who their clients are and whom they work for, and the companies they work for also register. If the amendment is made, we will have no idea whom they are working for or who their other clients are. It seems to me that those on the Government Front Bench—I look to the Minister—should reflect on the amendment carefully before deciding whether to press it. It is very dangerous.

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

Why does the hon. Gentleman think that those dangers would arise as a result of the proposed amendment? The word “person” would apply equally to an individual as to a company, so

“A person must not carry on the business of consultant lobbying unless… the person… is entered in the register”

could mean either a company or a human being. Indeed, it is likely to mean both, because if the person is carrying on business on behalf of an employer that is a company, he should register not only himself, but the company. I do not understand his objection, unless he has seen something in the Bill that I have not.

[Jon Trickett]

Let us look at the clause concerned. Clause 1 currently states:

“A person must not carry on the business of consultant lobbying unless—

(a) the person, or

(b) if the person is an employee, the person’s employer,

is entered in the register of consultant lobbyists.”

Amendment 76 would exclude paragraph (b), so I deduce from that that the Government do not wish to have on the register the employer of the person who is being registered. If I was incorrect in my interpretation, no purpose whatsoever would be served by that deletion, or by its inclusion in the Bill in the first place.

[Jon Trickett]

rose—

[Mr Cox]

Will the hon. Gentleman give way?

[Jon Trickett]

The hon. and learned Gentleman will have a chance to make a contribution if he catches your eye, Ms Primarolo.

The point is this: we will have the same individual, Mr Smith from Wimbledon, and we will know who his clients are. Under the Bill, as drafted, we will know who his employer is. If amendment 76 is made, we will not know who his employer is, so there will be a gaping hole in our knowledge. It might not matter so much for us, but there are tens of millions of people outside in the country who want to know why the Government abandoned legislation on, say, plain tobacco packaging, or why they suddenly decided to proceed with the privatisation of our national health service.

Amendment 76 would have a dramatic impact on the rest of the Bill, rendering parts of it entirely redundant. Clause 4, for example, requires a lobbyist captured by the Bill to register the address of their main place of business or, if there is no such place, their home address. The individual lobbyist’s home address could be registered and we would not know their place of employment. Yet clause 4 has been drafted precisely to attempt to ascertain where that person would be working from. Again, the Government amendment imperils the very principle of transparency that the Bill claims to advocate.

[Mr Cox]

rose—

[Jon Trickett]

I shall not give way again on this point.

In addition, if only individuals are required to register, there will be considerable risk of a knock-on impact on the Government’s ability to raise the necessary funding for the register. It will be interesting to hear what the Minister will say about that.

--- Later in debate ---

[Mr Allen]

My hon. Friend makes an important point. We have only a day to discuss those issues, which will be covered in the next group of amendments. I hope that the Committee will have the time to debate them, but it is now a matter of doubt whether we will have the chance to do so.

Much comes back to the fact that the Government do not consult Parliament in an effective way. If the Government had consulted Parliament, many of the foibles and flaws in the Bill could have been dealt with. My Committee spent a year, on behalf of every Member, considering this matter. We then spent seven hectic days trying to produce a report for the House. It is as if we had not bothered; it is as if the parliamentary process were irrelevant. The Bill has been stuffed into the sausage machine in the hope that it will be voted through tonight and the next two nights.

In conclusion—I will speak to other amendments on behalf of my Select Committee and others—the Prime Minister said that lobbying would be the next big scandal to hit us. I am afraid that there has been another scandal: the prostitution of the House of Commons by the Government in the way that the Bill has been brought forward. This is not a partisan point, but a point about the legislature and the Executive. I hope that there is a communion between Members of this House, who are parliamentarians, to say that this is an unacceptable way of making law. It would be unacceptable if it produced good law; it is absolutely intolerable that it produces such terrible law.

On behalf of my Select Committee, let me say that the Bill should be put into a special Committee so that we can have something we can all be proud of and say to our constituents, “You wanted us to do something about lobbying. The Prime Minister said it was a big issue, the coalition agreement said it was important, those on the Labour Front Bench said it was important and here it is, we have done the job. It has taken us a few years and another six months, but here it is.” If it is not, I am afraid that this House will be dragged into disrepute because of the way the Bill has come before us.

[Mr Cox]

The hon. Gentleman makes a familiar lament. I remember making it myself many times in the previous Parliament, from the Opposition Benches on which he now sits, in relation to his own Government.

There are those of us on the Government Benches who have concerns about the drafting of the Bill. I hope those on the Front Bench will listen to them and understand that there is no need to dive into the trenches and resist, and protect every clause. I must say that in making criticisms of the Bill—specifically, on clause 1—the hon. Member for Hemsworth (Jon Trickett) deployed a fundamentally misconceived argument, one that a short acquaintance with its provisions can demonstrate. It is important, if we are to make criticisms of the Bill, and to expect the Government to move on them, that we ensure they are well targeted and accurate. If they are not, all that will come from the Opposition will, if I may say so, be a wall of noise. A wall of noise will not persuade the Government to change individual clauses.

Government amendment 76, which seeks to delete clause 1(1)(b), does not do the mischief the hon. Member for Hemsworth suggested. After the deletion, clause 1 will read:

“A person must not carry on the business of consultant lobbying unless the person is entered in the register of consultant lobbyists.”

The word “person” is apt to cover a multitude of types of persons: it can cover an individual, a partnership and a corporate entity. That is plain in clause 25, which is not to be amended, where the interpretations provision is set out:

“Where the Registrar is required or permitted to serve a notice on a person, this is to be effected—

(a) if the person is a registered company…by sending it by post to the company’s registered office;

(b) if the person is an individual, by delivering it in person;

(c) in any other case…to the last known main address”.

It is plain that the word “person” in clause 1 covers companies and is not intended to exclude companies, as the hon. Member for Hemsworth suggested.

[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.

[Chris Bryant]

rose—

[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.

[Chris Bryant]

rose—

[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.

[Chris Bryant]

Will the hon. and learned Gentleman give way?

[Mr Cox]

No.

[Chris Bryant]

It will take seconds.

[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).

--- Later in debate ---

[Mark Durkan]

rose—

[Mr Cox]

rose—

[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.

Debate on the Address

Geoffrey Cox Excerpts

Wednesday 9th May 2012 Commons Chamber

[Geraint Davies]

I am not talking about whether the hon. Gentleman and others referenced growth, but whether they took any notice at all of the fact that across Europe we are seeing these fundamental changes. The economic orthodoxy wants to ignore the wishes of people who are being downtrodden by these austerity measures, and we are facing a real challenge as regards the future of democracy in parts of Europe, the future of the euro, and the future of the European Community. In this year of her diamond jubilee, the Queen should have been given the opportunity to demonstrate that the Government are showing greater leadership by example in developing a proper, coherent strategy for delivering growth instead of cuts to get the deficit down. Instead, we have had the same old medicine with the familiar side effects of less money being spent in the public sector, leading to less money in the private sector and a downward spiral of unemployment and poverty. We have seen that across Europe.

What we need in the UK and Europe is a combination of fiscal stimulus and co-ordinated investment. The party with the best record on growth is of course the Labour party. Between 1997 and 2008 there was unprecedented and continuous growth that we had not seen since the war. In 2008, of course, we faced the financial tsunami, and to the credit of my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr Brown) and Barack Obama, the introduction of the fiscal stimulus enabled the world to avoid depression and deliver shallow growth into 2010. Then the Conservatives took over a deficit that was two-thirds caused by financial institutions and one-third caused by the Labour party investing beyond earnings to continue growth. Their immediate response was to announce half a million job cuts, which deflated consumer demand and led to negative growth. Indeed, the deficit projection is up by £150 billion.

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

Does the hon. Gentleman think an 11% annual budget deficit was sustainable?

[Geraint Davies]

No, of course not. The question is what is the most effective way of reducing the deficit is and what the balance should be between growth and cuts. By way of a simple example, I spoke to a business person in Uplands in Swansea, and he said, “I run a business. If I were to make a loss and I sold my tools and laid off all my workers, I’d have no business. I need to tighten up my costs and focus on developing more products and selling them in the marketplace”. The idea that we can solve the deficit just through making cuts is barmy. The focus should be on balancing the books through jobs and growth.

Let us examine the situation in Greece. Given the draconian cuts to pensions and jobs, it is no surprise that people cannot see any obvious upside. The money that is being put into Greece is being used to pay down the debt rather than to invest in productive infrastructure that can generate growth. I am not saying that there should be extra money for Greece, but we must consider the balance between the two.

The EU could invest in solar forests in Greece to generate energy for the rest of Europe, in connectivity such as railways and roads to boost the holiday industry, in infrastructure in the holiday industry, or in broadband across Greece. At the moment, the £13 billion a year that the EU spends on research and innovation is all spent in the north of Europe. The centres of excellence in Germany, at Oxford and Cambridge and the like get the money, and Greece is regarded as having under-developed academic resources. Such policies need changing, because we are a community, not just a market. The way through for Greece is to negotiate a settlement in which debt reduction is balanced by investment in productive infrastructure that can deliver growth and help Greece pay its way. It is not for the EU simply to say, “You are poor, you’ve spent too much, we’ll make you poorer”.

Britain should take a lead and invest in growth in our own backyard and in team GB. We should work together to provide coherence about economic growth. In my area, I am instrumental in bringing together stakeholders from the Swansea bay city region. Swansea council, Neath Port Talbot council, which is next door, and Pembrokeshire and Carmarthenshire have made a joint submission to the Welsh Government saying that they want to work together within a city region of some 750,000 people rather than operate independently. They want to have joint marketing and inward investment strategies and put more pressure on the Government to provide the infrastructure to deliver growth.

The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) mentioned that if Wales had the £1.9 billion that is equivalent to what is being spent on High Speed 2, it could invest in, for example, the electrification of the railway to Swansea or reducing the toll on the Severn bridge, as the Government have done on the Humber bridge. That would stimulate trade coming into south Wales and enable a coherent, joined-up approach to economic development, working in tandem with industry and academia to move economic growth forward. Alongside a fiscal stimulus, such joining up of the economic capabilities of councils across Britain, targeting emerging consumer markets, is the basis of a coherent growth plan that can move us forward. That is better than the Conservative party’s preoccupation with savage cuts affecting the most vulnerable, which are also happening in Greece.

I hope that there is a golden future for the Swansea bay city region. Increasingly, people will realise that it is a great location to go to. It has environmental beauty, and the roll-out of broadband means that people can move out there. The costs of setting up a business are much lower than in London, and I hope that Swansea’s premier division status—it has the premier football team in Wales—will help us move forward. I say that with no disrespect to Cardiff, who I know did not get into the premier league, so there is just one premier league team in Wales.

The region is a cultural centre. It was the birthplace of Dylan Thomas, whose centenary will be acclaimed in 2014. It is a centre for tourism and for sport, so there is a package of activity that makes people want to visit the Swansea bay city region, invest in it and move there. The future is bright. We ask the Government for a bit more support for infrastructure, as part of a growth plan, so that we can work together to create jobs and wealth. That is the only real solution to getting the deficit down, rather than simply cutting again and again.

What we need now is to follow the example given in 2008 by Obama and my right hon. Friend the Member for Kirkcaldy and Cowdenbeath, who averted a depression. We must have a co-ordinated approach across Europe so that we can move forward together before it is too late. We all know the adage: give a man a fish—I should say give a person a fish, or in this case give Greece a fish—and he can eat for a day, but give him a rod and he can eat for a year. Now, we are cutting the fish in half so that he is hungry by lunchtime. We need to get the balance right between investment in infrastructure and cuts. I would have liked at the centre of the Queen’s Speech bold new initiatives for Britain that could provide leadership for Europe and help us move forward in the world.

Public Confidence in the Media and Police

Geoffrey Cox Excerpts

Wednesday 20th July 2011 Commons Chamber

[Mr Whittingdale]

I agree with the hon. Gentleman. There was undoubtedly a failure of corporate governance, and that may well exercise the minds of the shareholders of News Corp, and perhaps even the American authorities.

Reference has been made to The New York Times article, which I remember well. Part of the problem was that the quotation that I think the Leader of the Opposition read out was from an unnamed former editor. Sean Hoare was named. He was the only individual who was. Sadly, the late Sean Hoare was an individual whose testimony some people felt might not be wholly reliable.

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

Is it not also true that Mr. Hoare was unwilling to back up the allegations that he had made to The New York Times?

[Mr Whittingdale]

I know that it was widely believed that Sean Hoare’s testimony would not stand up in court.

I want to raise one other matter that relates to the actions that could have been taken by the previous Government. The one recommendation from the Information Commissioner, right back at the time of the “What price privacy?” report, was that the maximum penalty for breach of the Data Protection Act 1998 should be a custodial sentence. Press freedom is protected because there is a public interest defence in that Act. My understanding is that the right hon. Member for Blackburn (Mr Straw), who was the Home Secretary at the time, accepted that recommendation and it was Government policy to impose a custodial sentence as a maximum sentence, but he was then overruled by the then Prime Minister following pressure from the media.

--- Later in debate ---

[Keith Vaz (Leicester East) (Lab)]

It is a pleasure to follow the hon. Member for Maldon (Mr Whittingdale). I congratulate him and his Committee on the excellent work that they have done in their inquiry. I thank you, Mr Speaker, for allowing the House to sit for this extra day, and the Prime Minister for coming to the House and making such a very long statement and answering so many questions.

Yesterday was a good day for Parliament. Along the corridor of the Grimond Room and the Wilson Room, the Select Committees for Culture, Media and Sport and for Home Affairs were simultaneously holding hearings. We in our Committee did not have the drama of the Culture, Media and Sport Committee hearing, and I know that you, Mr Speaker, have instituted a security investigation. Perhaps there were no police officers around because most of them were giving evidence to the Home Affairs Committee. We took evidence from both the former commissioner and the former assistant commissioner, and there were a lot of police officers there.

I pay tribute to the work of my Committee Clerks, and to the Committee. We basically locked the doors in the Grimond Room to ensure that we agreed the report that is before the House today. I will speak only briefly about these issues. The report has 122 paragraphs and it was published at 5 o’clock this morning. But there is an opportunity for those participating in this debate to look at the report’s conclusions, which we began as early as last October. I thank members of the Committee, three of whom—the hon. Members for Rochester and Strood (Mark Reckless) and for Northampton North (Michael Ellis), and my hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe)— are in the House today, for the work that they have done. Others, I am sure, will come into the debate.

The report’s conclusions centre on three areas—first, the police, secondly, the mobile phone companies, and thirdly, we touched on News International, only in respect of its co-operation or lack of co-operation with the police. We found a catalogue of failures by the Metropolitan police. We looked at the first investigation and we took evidence from Mr Clarke, a senior officer, very distinguished in relation to counter-terrorism. But Mr Clarke felt that he could not proceed with his inquiry, the first inquiry—we provided a useful timeline for hon. Members just after the first chapter, which sets out when these inquiries took place—because he felt that he was deliberately thwarted by News International. We took evidence from Mr Hayman, and the report speaks for itself in respect of his cavalier attitude to the Committee, and indeed to his relationship with News International. We questioned the relationship between the police and New International whereby there appeared to be a revolving door. Former senior police officers ended up writing articles in News International titles, and former employees of News International ended up working for the Metropolitan police and advising the commissioner for £1,000 a day.

The second inquiry, we felt, was also very poor. To give him his credit, John Yates was very clear. He used more colourful language when speaking to Sunday newspapers, but we thought that it was a serious misjudgment that on 9 July he spent only eight hours looking at the evidence. He denied that that was a review and said that it was the establishment of facts, but we were clear when we took evidence from Sir Paul Stephenson that no time limit was placed on John Yates. He could have taken longer. Indeed, when we saw the DPP, Keir Starmer, afterwards, he was very clear that John Yates had contacted him after 9 July, because Keir Starmer, in preparing his evidence for the Culture, Media and Sport Committee, had asked John Yates to come and talk to him, with leading counsel, to decide whether there was a case to reopen the matter on 9 July. Sadly, the lack of co-operation from News International continues. As the hon. Member for Maldon has just said, it is refusing to waive client confidentiality, and refusing to allow Harbottle & Lewis to release the exchange of correspondence.

[Mr Cox]

May I take the right hon. Gentleman back to 2006? Did he find as part of his investigation that the Attorney-General had been informed in 2006—on 30 May, to be precise—that a vast array of numbers had been tapped by investigators employed by News International? The then Attorney-General’s approval was sought for a much narrower focused investigation, which plainly, by implication, was given. Is it not clear that Ministers knew in 2006 that there was a great array of tapped phone numbers that could have given rise to a wider investigation, but they never allowed the police, or instructed the police to carry it out?

[Keith Vaz]

No witness who came before the Committee has said that to us, but I am happy to write to the previous Attorney-General to ask whether in fact he or she—I have forgotten who it was at the time—was informed. Clearly the Director of Public Prosecutions was informed, and the Attorney-General has superintendence over the DPP.

[Mr Cox]

rose—

[Keith Vaz]

I will not give way a second time, but I am happy to talk to the hon. and learned Gentleman later, or if he catches Mr Speaker’s eye he could make his points then. I shall be happy to write to the previous Attorney-General if that helps.

We come to the end of the second police investigation and the failure of the police to inspect the evidence in their possession adequately and thoroughly. The risk was that waiting for a certain length of time with, as Mr Yates described it, bin bags full of evidence, there is the possibility that the Metropolitan police would have disposed of that evidence. Just in time, Operation Weeting was established. We all agreed that Sue Akers gave excellent evidence to the Committee. We want to ensure that she has all the resources she can possibly need. That is one of our recommendations. Although when I last pressed the Prime Minister on the issue, at the Dispatch Box a week ago, he said that he was leaving it up to the Metropolitan police to decide on resources, Sue Akers really does need more resources. There are 12,800 names; she has cleared 170 and is clearing them at the rate of 30 a month. We made a calculation, which is not in the report, that that process could go on for several decades. It will take at least a decade unless we give her the resources that she needs. We have confidence in Sue Akers. We believe that she will complete her investigation properly.

There are many issues in the report, but I want to highlight two relevant points. The first concerns the arguments that went on throughout the whole process between the Director of Public Prosecutions and the police. The hon. Member for Rochester and Strood pursued that issue vigorously with all our witnesses, and I am sure if he catches your eye Mr Speaker, he will be able to enlighten the House on what he and the Committee saw as the problem. Suffice to say that it is not helpful when such things happen. We should like to see the Crown Prosecution Service and the police working closely together.

--- Later in debate ---

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

I want to raise three points. Although I congratulate the right hon. Member for Leicester East (Keith Vaz) on his Committee’s report, one or two loose ends seem not to have been followed up. On 30 May 2006, a Crown Prosecution file note recorded that the police had written a briefing paper informing the Attorney-General and the then Director of Public Prosecutions that

“a vast number of unique voicemail numbers belonging to high-profile individuals (politicians, celebrities) have been identified as being accessed without authority. These may be the subject of wider investigation.”

In a memorandum dated 8 August 2006, a senior Crown Prosecution Service lawyer wrote:

“It was recognised early in this case that the investigation was likely to reveal a vast array of offending behaviour.”

However, the Crown Prosecution Service and the police concluded that aspects of the investigation could be focused on a discrete area of offending relating to two officials at the palace and the suspects Goodman and Mulcaire.

From those documents, it is absolutely manifest that the Attorney-General in the previous Government, who sits when appropriate in the Cabinet, was informed that there was “a vast array” of offending behaviour in which hundreds of celebrities, Members of the House and of the other place and others had had their phones accessed without authority. Why was nothing done?

The Leader of the Opposition has left the Chamber. Can he or former members of the Cabinet tell us whether the Attorney-General in 2006 brought to the attention of his colleagues the fact that a vast array of offending behaviour had been committed by News International but it was not intended that it be investigated by the police? The Attorney-General has a solemn duty to draw to the attention of the Cabinet such matters if they affect the public interest. The Attorney-General has a right of oversight of the CPS—the ultimate resort—and could at least instruct that advice be given to the police on such matters. Why was nothing done?

I invite the Chairman of the Home Affairs Committee to call for that evidence and to examine it closely, because it seems to me a matter of the most pressing public interest.

[Mr Straw]

The hon. and learned Gentleman invites members of the then Cabinet at large to say whether the information was ever shared with them by the then Attorney-General. I can only speak for myself. I served in that Cabinet and subsequent ones and on no occasion do I recall that Attorney-General, or any Attorney-General, ever informing members of the Cabinet either at a formal meeting or informally, of an ongoing investigation. Even when I was Home Secretary, the Attorney-General of the day would never have informed me about an investigation and decisions he or she had made, nor would I have sought that information.

[Mr Cox]

I am grateful to the right hon. Gentleman for that information, but the fact remains that the Attorney-General under the previous Government appears to have countenanced a prosecution strategy when he and the then Director of Public Prosecutions knew that the voicemails of hundreds of individuals had been accessed.

[Keith Vaz]

I will write to the previous Attorney-General today to ask for that information.

[Oliver Heald]

rose—

[Mr Cox]

I will give way to my hon. Friend.

[Oliver Heald]

When the former Home Secretary spoke a moment ago, he used the words, “or informally”. Does my hon. Friend think that one aspect that may need examining is whether the matter was another subject that fell into the “sofa Government” category, and that the Attorney-General may have spoken to the Prime Minister or one or two others, but it was not brought before the full Cabinet?

[Mr Cox]

The matter needs to be closely examined, and the Chairman of the Home Affairs Committee has taken it on board. With the greatest respect to the Attorney-General at the time, if he was informed of the matter, he should have interested himself in exactly how the investigation would be conducted. On the face of it, an enormous amount of wrongdoing was simply ignored. The police appear to have proposed a strategy, which would, as the briefing paper put it to the Attorney-General, “ring-fence” Mulcaire and Goodman and exclude a whole raft of serious criminal wrongdoing from investigation. That may well have affected Members.

I do not know to whom the Committee refers when it says that neither Ministers nor the police escalated the matter. As the Committee put it, if Ministers at the time had taken those issues sufficiently seriously, the matter would have been investigated. The truth would have been discovered then and we could have avoided a whole series of events that we now know unfolded.

My second point is about the review suggested by then Deputy Assistant Commissioner Yates. The Home Affairs Committee has rightly judged, in tone and substance, its criticisms of Mr Yates and Mr Hayman. There are serious questions to be asked about why an investigation or a review—I appreciate that it was not a formal review—that was carried out in eight hours apparently failed to read material that, as the former Deputy Director of Public Prosecutions was able to determine in a few minutes, gave rise to the gravest illegalities. On the face of it, that is either wilful blindness or rank incompetence. Whatever the reason, Mr Yates’s resignation was right and done for proper reasons. It is inconceivable that, if the exercise had been carried out properly, the material would not have come to light in 2009. Questions arise about the closeness of officers of the Metropolitan police to News International and whether that deflected and deterred them from a rigorous analysis of the evidence that had been in their possession since 2006. It was not only in their possession, but, as the memorandum of 30 May 2006 to the Attorney-General shows, they had discovered that it included

“a vast array of offending behaviour.”

[Mr James Clappison (Hertsmere) (Con)]

I do not know many of the details that my hon. and learned Friend has given to the House, but the Select Committee heard that a great deal of the evidence was never examined, either in the original investigation or in the course of the review, so it could not be known what possible criminal behaviour had occurred, in addition to the hundreds and thousands of names involved. The e-mails that my hon. and learned Friend mentioned are slightly different. News International supplied them internally and they had not been held by the police. They were supplied to the solicitors who gave them in May to the former DPP, who quickly saw wrongdoing in them.

[Mr Cox]

My hon. Friend is right that new material was supplied by Harbottle & Lewis, but I am referring to material that was in the possession of the police in 2006—mobile phone records, about which they told the then Attorney-General, “Look we’ve got a vast array of offending behaviour here. What are we going to do?” The instruction—or at least the approval—that came from on high appears to have been, “Confine it. Keep out the penumbra of offending behaviour you could examine and confine it to Mulcaire and Goodman.” That was wrong. With hindsight, we now see that that judgment was fundamentally flawed. The matter should have been investigated. Why was it not?

One cannot resist the conclusion that, until it became apparent that ordinary members of the public—Milly Dowler, soldiers who fought for this country—had also been subject to hacking, the Labour Government’s approach was that politicians and celebrities were fair game, so it was not a serious matter. The Chairman of the Home Affairs Committee reported that Mr Clarke gave as his justification the fact that he did not have many resources and that he was also dealing with terrorism at the time. Frankly, the clear impression is given that the matter was not very serious. One suspects that that is why no action was taken.

It has been suggested that the Prime Minister’s chief of staff was wrong to decline an invitation to be briefed in 2010. The surprise is that the offer was ever made, not that it was declined. The chief of staff did exactly the right thing. In 2010, when The New York Times published the report, the Prime Minister was right: he needed evidence. He could not act on anything else.

--- Later in debate ---

[Mr James Clappison (Hertsmere) (Con)]

I served on the Home Affairs Committee inquiry into this matter. I came to the inquiry straightforwardly; I had no previous involvement or personal interest in it. I heard the evidence given to the Committee and shared the conclusions that it came to and which I felt were justified by the evidence. I say with sadness that I am not satisfied with all the evidence that we heard from the police. I say that with sadness as somebody who has the greatest respect for the police. I do not believe that any taint has been put on the integrity of Sir Paul Stephenson or on the thousands of Metropolitan police officers who serve on the force, many of whom live in my constituency. However, questions remain unanswered about the conduct of the investigation, including the original investigation, which, as we now know, seems to have had catastrophic effects on the reputation of the police and, as we now know, on many individuals.

I heard the contribution from my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) and agreed with many of the questions that came to his mind. As he said—and this was the evidence that the Committee heard—a considerable amount of material was seized from Mulcaire and Goodman, but the police did not properly pursue investigations with the material that they had. Indeed, some of the large quantities of material was not investigated or read at all, it would appear. Nor did the police look for further potentially relevant material in the normal way by searching premises, seizing documents and interviewing people. We now know that such material might have been at hand because we heard the evidence from the former Director of Public Prosecutions—as it happens, he now works for News International as its counsel—who, when asked to advise on this matter, saw some of the material that had been in the hands of News International and after brief consideration advised that it contained criminal matters that had to be referred to the police. I think that that was in May 2011—that is what the chronology suggests—not in 2005-06 when the matter first came to light.

[Mr Cox]

I am grateful for what my hon. Friend has said. I can show him the evidence if he wants. On 30 May 2006, the Attorney-General and the DPP were informed that there was a vast array of offending behaviour and that a vast number of telephone numbers in the possession of the police had been accessed without authority. However, there was a conscious decision to confine the investigation, even though they knew that hundreds of people, including Members of the House, had had their phones tapped.

[Mr Clappison]

I have to say, having heard the evidence, that the answer to my hon. and learned Friend’s point remains hanging in the wind. I am not satisfied with the explanations that we have heard, which will appear in the evidence that will be published by the Home Affairs Committee. One explanation that was given by a senior investigating officer in the case was that the police had other priorities, and this matter was not regarded as sufficiently important when set beside them. We have to accept that police resources are limited and the police have to determine their priorities, but their credibility on the matter is not assisted by what the senior investigating officer of the case wrote about it—incidentally, in a News International newspaper of which he had subsequently become an employee. I am referring to Mr Hayman, who said:

“In the original inquiry, my heart sank when I was told the accusations came from the Palace. This was not the time for a half-hearted investigation—we put our best detectives on the case and left no stone unturned as officials breathed down our neck.”

I believe that was inconsistent with the evidence that we heard from the police about the priorities that they set themselves at the time. That is the honest conclusion that I have come to on the basis of that evidence.

The Committee has gone as far as it can. I believe we have gone to the limits of what a Select Committee can achieve in carrying out an investigation. These questions now remain to be resolved by others in the course of the Leveson inquiry, which my right hon. Friend the Prime Minister has rightly set up, and further criminal investigations must go forward under the direction of Sue Akers in Operation Weeting. In view of the evidence that we have now heard from the former DPP and others, I will not be surprised if evidence is uncovered of further phone tapping, further payments to officers and, I am afraid, possibly other offences involving the corruption of police officers. I hope that that is not the case, but the important thing for the reputation of the police, the good reputation of many honest officers and the public interest is that these matters are now fully investigated impartially and independently, and that those investigations are carried through to their conclusion.

We have heard a great deal about the press. One catastrophic effect of the original failed investigation, along with the failed review carried out by Mr Yates in 2006, was that senior police officers went to see representatives of The Guardian, which had been carrying out an investigation, effectively to try to put them off further investigations by persuading them that their investigation, which was based upon matters that were seeping out through the civil courts, was exaggerated and unjustified. It is to the credit of The Guardian, and particularly its journalist Nick Davies, that it persisted with the investigation. I say that as somebody who is no great sympathiser with The Guardian—I do not expect to receive an invitation to lunch there any time soon, and I do not know the people concerned. However, that was to their credit, and it was an illustration of the value of a free press.

That brings me to my next point. It is very important to keep the criminal side of this separate from the issues that arise in respect of the regulation and ownership of a diverse, free and robust press. The matters that we have been talking about are criminal matters, not just matters of comment or of insufficient comeback from the Press Complaints Commission. They are serious criminal matters involving a wide range of people—politicians, celebrities and, as we have heard, many ordinary members of the public often in tragic circumstances. Each case has to be properly investigated, and anybody who has committed offences has to be brought to justice.

Parliamentary Voting System and Constituencies Bill

Geoffrey Cox Excerpts

Wednesday 16th February 2011 Commons Chamber

[Mr Harper]

I am grateful to you, Mr Deputy Speaker.

A related point made in the other place was the argument that Lord Rooker’s threshold was appropriate because the question being decided in the referendum was constitutionally significant. My argument is that we are having the referendum because this is an important issue—it is about how we are elected. It is not right that we make that decision, because the people should decide how Members are elected to this House.

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

What is meant by “the people”? Is there any size of turnout that the Minister would regard as not really constituting a verdict of the British people? Is it not sensible for a fundamental constitutional and political change such as this to have a minimum turnout threshold to warrant and justify it?

[Mr Harper]

Our system does not have a minimum turnout threshold for elections and we do not have a tradition of thresholds for the 10 referendums that have been held in this country. Only one of those referendums had a turnout threshold and its effect was to thwart the clearly expressed will of the people. It may have been something I agreed with, but it meant that that issue festered for another decade.

--- Later in debate ---

[Dr McCrea]

The Prime Minister giving his word to the Deputy Prime Minister is one thing; what counts is the Prime Minister’s word to the people of this United Kingdom. Our Prime Minister has no appetite or conviction for this legislation at all. This is a grubby deal simply to keep a party happy, and to keep its Back Benchers happy at this time, but on a major constitutional issue such as this, is that the way in which we run our country? Is that the way in which we are supposed to make our decisions? On a previous occasion, the question was asked, “Would the coalition collapse if this issue were defeated?” The answer, if I can remember, from the Deputy Prime Minister was no, so to try to suggest that it would collapse is not factual at all. If it were, I suggest that it would be blackmail, and we cannot blackmail hon. Members of this House.

What we are here to ensure is what we, by conviction, believe is best for the country, not the lowest common denominator. So, I ask this question: where is the pressure coming from for this legislation or for AV? It is certainly not coming from the Conservative party, or from the Prime Minister, because he takes the very opposite view. It is simply coming from a few members of the Lib Dems, who believe that, from now on in, they can hold the country to ransom. They hope that, as far as governing is concerned, they will hold the balance of power in any election that follows.

The hon. Lady had better remember, and let us make no mistake, that if the Lib Dems thought that, in order to keep their ministerial cars after the next election, a coalition would be better with Labour, they would join a coalition with Labour. They are not doing this out of conviction; they are doing it for personal, petty position, and I suggest that that is a ridiculous way of dealing with such a constitutional issue.

[Mr Cox]

We have but, I think, two minutes—[Interruption.] One minute.

During the time in which this subject has been before the House, I have voted consistently but regretfully against the Government’s position. I cannot understand why we voted for thresholds in opposition and are voting against thresholds in government. I cannot understand why a party—the Liberal Democrats—that preaches constitutionalism does not appreciate that constitutional protections and constitutional safeguards, such as minimum thresholds on fundamental—

Fixed-term Parliaments Bill

Geoffrey Cox Excerpts

Wednesday 1st December 2010 Commons Chamber

[Mr Jenkin]

Amendment 6 stands in the name of my hon. Friend the Member for Stone (Mr Cash), who, as I mentioned earlier, is abroad on other House business as Chair of the European Scrutiny Committee.

We are at a curious juncture in the Bill and, indeed, in our constitutional history. The background to the amendment is the tension, since time immemorial, between this House’s ability to function immune from judicial interference, and the courts, which periodically have sought to limit the extent to which we can continue our business unimpeded by the courts. That was, of course settled—to a degree—in the Bill of Rights in 1789—

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

1689.

[Mr Jenkin]

Sorry, 1689. My hon. and learned Friend will keep me up to the mark, because he is much more of a lawyer than I am.

In recent years, however, the tension between the courts and the independence of this House has been thrown into relief. I remind the Committee of cases such as the one brought by Lord Rees-Mogg for judicial review of the ratification of the Maastricht treaty after this House had passed an Act of Parliament.

--- Later in debate ---

[Mr Robert Buckland (South Swindon) (Con)]

I rise to make a brief contribution. I have listened with great interest to the debate and I await with even greater interest the Minister’s response to the very well advocated position on amendment 6, with which I have great sympathy.

It seems blindingly simple to me. Clause 2(3) stops at the words, “for all purposes.” The comparison with section 3 of the Parliament Act 1911 has been made, so why not include the extra words,

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

The amendment proposes the use of the word “whatsoever”, which was no doubt an attempt by my hon. Friend the. Member for Stone (Mr Cash) to deal with the European question—that is perfectly legitimate and I understand entirely the reason for his wording—but the point is the same: if such a provision was good in 1911, why is it not good now? If anything, the balance between Parliament and the courts has deteriorated, as the hon. Member for Stoke-on-Trent Central (Tristram Hunt) eloquently outlined. The balance is now extremely fine, and it is in danger of being overturned in favour of judicial activism.

It may well be that reliance will be placed upon the residual powers of article 9 of the Bill of Rights, but as an Act of Parliament, that too is subject to judicial interpretation. Over the years, it has been interpreted in a variety of ways by the courts. Notably, it has been impliedly waived or restricted by this House. Section 13 of the Defamation Act 1996 is a good example of Parliament deciding, in effect, to allow its privilege to be qualified. I have strong views on the wisdom of that legislation—it was foolish and has led to unintended consequences, which are at the heart of this debate.

No Member of Parliament wants a diminution of its authority or power. This is an elected Chamber and we represent the people of this country. Sovereignty means just that. It is right that all hon. Members worry—even if it is sounds like lawyers’ caution—about any further unintended diminution of our authority. That is why I support amendment 6. Why not change clause 2(3) to put things as far beyond doubt as possible, mirroring what legislators did in 1911, to ensure that the spectre of the judiciary questioning and second-guessing the proceedings of the House does not become a reality?

[Mr Cox]

I had not intended to speak, and I shall be extremely brief. Most of my remarks will be addressed to the Minister in the hope that he can provide the clarification in substance to the questions asked by my hon. Friends and Opposition Members, which I should like to reinforce.

My first question is precisely that which my hon. Friend the Member for South Swindon (Mr Buckland) just asked. Why not add the proposed words? If clause 2(3) is intended to be an instruction to the courts that a certificate shall not be challenged, on the face of it there could be no real reason, unless the Minister has thought of something that others have not thought of or been advised otherwise, why the injunction of my hon. Friend the Member for Stone (Mr Cash), which is more expressive, explicit and detailed, should not be added. Will the Minister elucidate the purpose of stopping short at the word “purposes” and not going on to be as explicit as possible?

I ask that because historically, ouster clauses in administrative law have not been conspicuously successful. The courts have not paid very much attention to interpreting their duty to examine such issues, and often even where the ouster clause has been passed. [Interruption.] I see from the sedentary reaction of my hon. Friend the Member for Somerton and Frome (Mr Heath)—the Deputy Leader of the House—that the reason may be that such provisions are so pointless that there is no point in going any further. If that is the reason, it would be helpful if the Government made that clear, so that Members could consider that. I have to tell him that I do not consider the provision to be pointless—I would not imagine that the Government would do anything that was pointless in drafting the legislation.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

indicated assent.

[Mr Cox]

I see my hon. Friend nodding sagely. That provision therefore must have a function. If that function can be increased in its effect and efficacy by adding the proposed words, why not incorporate them?

--- Later in debate ---

[Mr Jenkin]

We all know that we are talking about heated and potentially controversial circumstances. If there was a raging controversy about alleged malpractice in our proceedings or surrounding them, and if public opinion was strongly supportive of one view or the other, there would be intense pressure on a court to intervene. Does my hon. and learned Friend not think it would be difficult for a court not to intervene under such circumstances?

[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 George Howarth (Knowsley) (Lab)]

The issuing or non-issuing of a certificate is a slightly false comparison. The issuing of a certificate would result in action—providing that it was not challenged successfully in a court—whereas the non-issuing of a certificate would, I presume, simply preserve the status quo.

[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—

[Chris Bryant]

Stoke-on-Trent.

[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.

--- Later in debate ---

[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 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.

Parliamentary Voting System and Constituencies Bill

Geoffrey Cox Excerpts

Monday 18th October 2010 Commons Chamber

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

Is not the point about the referendum that it will change the rules of the constitutional landscape for ever? Now is therefore the time to focus our attention on who should exercise the franchise on that critical question, which will affect how Members are elected to the House for the next 100 years or more. It is different from an ordinary election.

[Mr Harper]

Given our tradition of parliamentary sovereignty, my hon. Friend does not set out the position accurately. If we have a referendum next year, as I hope we do, and if the people of the country decide to change the electoral system, as I hope they do not, it is open to a future Parliament to hold another referendum. The referendum will not change the position for ever—nothing is for ever in a parliamentary democracy. I do not buy the argument that, just because we are having the referendum, we are required to change the franchise over and above the one that we use for parliamentary elections. Choosing the Government of the country is a significant matter. Indeed, many—perhaps more on the Government side of the Committee—would argue that Governments who are elected can make significant changes. Governments took us into the European Union and signed treaties that bind us unless we decide specifically to opt out of them. We might not have been entirely happy that Governments did that, but we did not challenge their right to do so. The Government’s position is that we have stuck with the franchise. However, I have listened carefully to what my hon. Friend the Member for Altrincham and Sale West said, and this is an issue worth revisiting, but this Bill is not the right place to make the change.

[Mr Cox]

Is my hon. Friend seriously suggesting that if the country opts to change the voting system to the alternative vote—I do not think that it will and I fervently hope that it will not—a future Parliament could never turn the clock back and restore first past the post?

[Mr Harper]

Of course it could. If the voting system were changed, the public might reconsider and want to change, either back to the old system or to another one. That has been the experience of other countries that have reformed their electoral systems. It is perfectly sensible to say that that could happen, and my hon. Friend is not really setting out an argument for why we should change in this case.

Fixed-term Parliaments Bill

Geoffrey Cox Excerpts

Monday 13th September 2010 Commons Chamber

[Mr Straw]

I acknowledge the point that my right hon. Friend makes.

I want now to deal with the privilege of the House, which was much aired in the evidence that the Clerk gave the other day to the Political and Constitutional Reform Committee chaired by my hon. Friend the Member for Nottingham North. This issue has echoes of our debate 15 months ago about the Parliamentary Standards Bill. I recall that when I introduced the Bill there was a huge harrumph about the degree to which Parliament’s privilege would be being affected by its provisions. There was such a huge harrumph that the Government were defeated on those provisions and had to go back to the drawing board, so I have thought about this matter.

I would not dream of asking the Deputy Prime Minister to confirm this, but I dare say that the advice that he has received about the implications of this Bill are from similar sources to those from which I received advice on the 2009 Bill. I understand that the arguments are often finely balanced. I have certainly given similar undertakings to that given by him about the very long odds on the courts intervening, but this House and the other place are both highly sensitive to interventions by the courts on the privilege of the House. The hunting decision can be used in both ways: the actual decision of the courts, in respect of the Parliament Acts, was not to overturn a decision of this House, but the very fact that they entertained the argument was worrying. I ask him to think very carefully about that.

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

Can the right hon. Gentleman think of any other statute in respect of which the courts have declined at least to entertain an arguable interpretation?

[Mr Straw]

No, and that is the point. The courts will decline to entertain arguments, and actions, about what happens in the House, because they are banned from doing so; their job is to interpret legislation. The Government are inherently more vulnerable—I do not say that I share the view of the Clerk that they are very vulnerable—because they can get past the first base.

--- Later in debate ---

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

Thank you, Madam Deputy Speaker, for giving me the opportunity to speak on this extremely important Bill. In the evidence that the Select Committee received, one of the distinguished experts who gave their opinion on the Bill described it as so fundamental that in other countries it would have required a constitutional amendment and possibly an entrenched majority of the House to pass.

It is a symptom of the lack of seriousness with which constitutional questions are sometimes treated in the House that the Bill is being rushed through with undignified haste, as appears to be the case, and I regret it. In the last Parliament I spent five years criticising the previous Administration and sometimes being a little harsh on the right hon. Member for Blackburn (Mr Straw) for the way in which he introduced constitutional Bills, but although he sometimes ignored the substance of consultation, he always preserved its appearance, and he did so with the charm and urbanity that is characteristic of him. In this case, we have had neither the substance nor the appearance. Every single constitutional expert who has given their opinion on the Bill has deplored the absence of consultation in which the House and those in the wider community have had an opportunity to participate.

I am troubled by the Bill. I do not understand why we should rush through the House so fundamental a constitutional alteration to arrangements that have stood us in reasonably good stead for generations. In this country our constitution has broadly served us well. We have had political stability for generations. It behoves the House to contemplate very carefully the wisdom of what it is doing, and to be sure that it is replacing the system that has served us well for so many generations with something better than what we had before. I do not believe that we have had the proper opportunity to consult widely and to consider carefully the Bill and the proposal that it puts forward.

Why would it not be possible, if the measure is important to the existence of the coalition, to propose a Bill that applied to this Parliament only, and thereafter to consider the longer-term question? I apply the same principle to some of the other constitutional changes that are being introduced by the Government. To my way of thinking, it is really quite likely that our constitution needs fundamental amendment. I have spoken in the House on several occasions, referring to the fact that I believe that the time may have arrived when we need to consider wholesale the constitutional arrangements of this country. But if we do that, we should do so in a way that dignifies with respect the history of our constitution; that treats it with sufficient seriousness and depth—that produces a constitutional convention, for example, or brings together men and women of good will across all the parties to decide upon the constitutional arrangements that may last 100 or more years and determine the democratic shape of our nation’s affairs. That is the way to introduce constitutional change, not in a piecemeal and fragmentary way, not incoherently, not because of immediate expediency, but because we have thought it through and because we know that what we seek to replace the former arrangements with will be better than what has gone before.

One of the things that troubles me most about the provision is that it removes the pivotal involvement of the monarch in decisions about the formation of a Government. It is not a light thing, however graciously Her Majesty may have placed her prerogatives at the disposal of the House, to remove some of the fundamental and inherent prerogatives that Her Majesty retains. In 1910, when Asquith approached George V and asked whether the King would be willing to make 300 new peers in an attempt to steamroller through a fundamental change to the constitution, the sovereign answered Asquith, “No. I will not allow you to push through so fundamental a change to our constitution in such a way unless you consult the people in a general election.” The right of the monarch to insist upon a Dissolution when some fundamentally antidemocratic change is proposed by a Prime Minister, is a fundamental safeguard in our constitution. It is something that the monarch, strong in the affections and respect of the British people, is uniquely able to do.

As Conservatives, I say to my right hon. and hon. Friends, we should think long and hard before we remove the cornerstone of our constitution—the discretion and prerogative of the monarch to safeguard our democracy. What is constitutional in this country is the Queen in Parliament, the Crown in Parliament. The mere fact that the Crown in Parliament is often silent and invisible and inactive does not mean that it is not an important cornerstone in our constitutional arrangements. The right of the monarch, either to decline a Dissolution or to insist upon a Dissolution, seems to me a fundamental safeguard. I am not saying that there may not be a case for change. What I am saying, and what I say to my right hon. and hon. Friends, is that it is not something for us as Conservatives simply to brush lightly aside, either for reasons of expediency or for reasons that are unnecessary. I say again: why would it not be possible to have a Bill that determines the length of this Parliament, if we needed such a Bill and if the good faith of the Prime Minister was not enough, and to consider the longer- term ramifications of the measure in a proper way?

The ability of the Prime Minister to seek a Dissolution is not simply the unfair, unprincipled, unattractive proposition that the Deputy Prime Minister proposed to the House an hour or so ago. The ability of the Prime Minister to go to the Queen to ask for a Dissolution can sometimes be done in circumstances very much in the interests of the nation. I am not saying that it is not sometimes abused. Of course I accept that it can be abused. But in other circumstances it may be vital. The Prime Minister may believe, for example, that it is required in the public interest that he should propose to Parliament a measure that was not in the governing party’s manifesto, but which, for reasons of principle, he believes he should put to the country. What does he do then? Let us suppose, for example, that a future Government proposed to join a united states of Europe. Let us suppose that a future Government, in the middle of its term, felt that it was necessary to put to Parliament a substantial surrender of power, so much so that it possibly placed the independent self-governance of this nation in question. Would not the Prime Minister be justified in those circumstances—I simply take that issue at random; there are many others—in asking the Queen for a Dissolution of Parliament? He has no manifesto commitment; this is a fundamental issue of principle. He is not seeking party advantage, but he believes in all conscience that he needs the approval of the British people. This Bill would prevent him from doing that unless he could gain the assent of 66% of the Members of the House. But he may believe, as a matter of conviction and conscience that it is vital that he should go to the people with so fundamental a proposal.

[Jacob Rees-Mogg]

Will my hon. and learned Friend give way?

[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.