Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and George Howarth

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I will certainly give my hon. Friend’s point consideration, because that may be one way forward. At the conclusions of today’s proceedings, I shall consider what the position will be, and I shall be writing to Mr Speaker with my conclusions and proposals.

[Mr George Howarth (Knowsley) (Lab)]

The right hon. and learned Gentleman says that it would not be in the national interest to share his legal advice with the House. Does he not realise, though, that in just over a week’s time this House is going to have to decide what is in the national interest? How are we supposed to do that when he will not tell us what his legal advice is?

[The Attorney General]

With respect to the right hon. Gentleman, he has had my legal advice. What he has not had is what is in any kind of document that might have been created or my oral advice in any other circumstance, to Government Ministers or to the Cabinet—if such exists. But he has had my legal advice—

[Mr Howarth]

No, I haven’t.

[The Attorney General]

Yes, the right hon. Gentleman has had my advice, and can have it at any other point on matters of law arising from the withdrawal agreement.

Fixed-term Parliaments Bill

Debate between Geoffrey Cox and George Howarth

Wednesday 1st December 2010 Commons Chamber

[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—