Fixed-term Parliaments Bill

Robert Buckland Excerpts

Wednesday 1st December 2010 Commons Chamber

[Mark Durkan]

I will acknowledge these interventions no further.

To return to the matter at hand, let us be clear that the Bill’s provisions are open to all sorts of contests, questions and controversies. As I have said, I believe that the Minister was wrong to say that the House will know in all circumstances when something is a vote of confidence. If he wanted to make that incontrovertibly so, he would need to provide either in Standing Orders or in the Bill for a formal indication by the Speaker that a certificate could be issued prior to the period set out in the Bill, which starts 14 days after a motion. That, in turn, would bring the Speaker into areas of political controversy and intervention. Amendment 6 is clearly aimed at ensuring that those difficulties do not make the issuing of a certificate, or possibly the failure to issue one, a matter of controversy that can be brought to the courts.

In discussing previous amendments, Members alluded to affairs currently in Oireachtas Éireann and in the Dail. Those affairs may be relevant this week, because an opposition party there has indicated that it might take to the courts the question whether, under the constitution, the agreement that the Irish Government have entered into has to be subject to a vote of the Dail. Let us not rule out circumstances in which a party here, possibly a party of Opposition, could feel that the Speaker had wrongly declined to issue a certificate, or that the Government were using all sorts of procedural chicanery to prevent certificates being issued and to reset the clock. That party might then feel obliged to take the matter to court if it felt that it faced dead ends and chicanery in Parliament. That is exactly the situation that was threatened in Dublin this week given what the Irish Labour party justice spokesman said. Let us not join the Minister in completely dismissing all such possibilities.

I do not want to move from Dublin to Northern Ireland affairs, but I have some experience of what happens in practice. I was involved in negotiating and implementing the Good Friday agreement, including as a Minister and Deputy First Minister. Ministers told this House that procedures would follow their own course and that political matters would not end up in the courts, but then I found that my election as Deputy First Minister was taken to court—when I was jointly elected with David Trimble—because all sorts of rules were bent and twisted and the clock was reset by Secretaries of State and others.

The Northern Ireland Act 1998 set a clear six-week period, but Secretaries of State discovered that if they suspended things for 24 hours, there would be a new six-week period. Whenever there is a facility to contrive a completely new situation and dispose of a statutory deadline, it is used—whenever Ministers are told that in case of emergency they can smash the glass, they do so. Completely contrary to the assurances and explanations given to the House when we debated the 1998 Act, a number of Secretaries of State found themselves doing that. In addition, Assembly Members redesignated to pass particular votes, even though they said that they would not, and so on.

In the context of the Bill, people have said that a Government would never put themselves in the embarrassing position of activating a vote of no confidence in themselves or cutting corners, ignoring rules or resetting clocks so that they can bypass dates and deadlines, but the Northern Ireland experience shows that that is not so. The exigencies of the moment, and the demands for stability and good governance, can be used as circumstantial excuses. Let us not pretend otherwise. If we are trying to provide for fixed-term Parliaments with clear, fixed and guaranteed arrangements, we must go further than the Bill does. It leaves too much power in the hands of the Prime Minister and the Executive when there has been a motion of no confidence, and in respect of their influence over the decision of whether a motion is one of no confidence or otherwise.

I therefore ask the Minister to acknowledge that there are shortcomings in the Bill. Some of the amendments have their own shortcomings, but they do not diminish the serious problems with the Bill. If he will not accept amendments 6 and 23, will he agree to work in another place and in the House at another time to make his own amendments, so that the Bill does not create those difficulties and controversies?

Under the Bill, the Speaker could be the subject of controversy. What if there are differences between the Speaker and Deputy Speakers on the question whether to indicate in advance that a motion is certifiable? More importantly, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, I believe that such matters could find themselves before a court, not only because somebody might want to contest the fact or content of a certificate, but more importantly because people might want to contest the failure to issue a certificate or the fairly questionable proceedings in advance of it. We do not want the Speaker of the House of Commons to be caught in the same position as Scottish football referees. They have been accused of taking and changing decisions in relation to subsequent arguments and events. Let us protect the office of the Speaker and this House.

[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.