Fixed-term Parliaments Bill

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? That brings me to my second point. If it is necessary under clause 3(3) to try to instruct the courts that the certificate should not be justiciable—that it should not be considered—that must imply, as does my hon. Friend's reaction from the Front Bench, that the Government are aware that the courts may well, even in remote and possibly extreme circumstances, become ensnared in the examination of these issues. One can see considerable skill and intelligence at work in the drafting of the Bill. One sees that it is intended not to be tempting to the courts. If we codify too much in statute, the danger is that the courts would be drawn into examining whether the preconditions for a motion of confidence had been met, whether the definitions were properly complied with and so on. What the legislation seems to be doing—if this is the intention, it is a laudable one—is enacting, in broad outline, so as to make it clear to the courts, that the critical questions of definition and discretion are still for the House and the proper authorities of the House. It is a statute that is intended to preserve a certain flexibility and suppleness so that the courts are not drawn into examining such issues, whereas they would be if we laid down too precise a definition of the concepts that they involve. I appreciate that, and I see the point of it. It no doubt forms part of the Government's confidence that the courts will not ordinarily enter into that territory. However, the mere presence of that ouster clause suggests that the Government are aware that in some circumstances they might. As the Government have indicated—albeit via a sedentary reaction—they are plainly aware that ouster clauses do not always work. That suggests to me that the Government are content—or at least have made a strategic decision—that in certain circumstances the judicial authorities may come to interpret and consider this legislation. I accept that that is highly unlikely in the ordinary case, given the amount of discretion, the amount of territory left to the Speaker and the ill-defined nature of many of the concepts. It would be a bold court indeed that entered into a discussion of such issues and allowed them to become the subject of a judicial review.