Fixed-term Parliaments Bill

My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability. The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that, "““the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament””." That is a general statement of the principle of parliamentary privilege. The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words ““conclusive for all purposes”” and, "““shall not be questioned in any court of law””." The phrase is ““shall not””, not ““ought not””. I suggest that, for a modern approach to the construction of statutes, the phrase ““shall not”” is much more useful than ““ought not””. The House of Lords Act 1999 simply uses the provision that the certificate shall be ““conclusive””. In this Bill we have the words, ““conclusive for all purposes””. Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of ““ought not””, those phrases ““shall be”” and ““shall not be””—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.