With this it will be convenient to discuss the following:
Amendment 10, page 11, line 30, at end insert 'and not by virtue of a common law principle.'.
Amendment 52, page 11, line 30, at end add-
'(2) The Secretary of State shall prepare an annual report on the extent to which in the previous 12 months the provisions of subsection (1) have been challenged or questioned in the courts, including the European Court of Justice, identifying any challenge to the declaration contained in that subsection that the status of EU law is dependent on the continuing statutory basis provided by the European Communities Act 1972.
(3) The report made under subsection (2) shall be laid before Parliament for its approval.'.
Clause 18 stand part.
New clause 1- Parliamentary sovereignty-
'Section 3(1) of the European Communities Act 1972 shall not extend to the construction or interpretation by the courts of the United Kingdom as to the nature or legal effect of parliamentary sovereignty and section 3 shall be amended accordingly.'.
New clause 4- Saving for existing law-
'Nothing in Part 3 adversely affects or shall be construed as affecting the existing constitutional law of the sovereignty of Parliament in relation to EU law.'.
The group relates specifically to clause 18, and I shall explain a little of the amendments' purpose.
Amendment 41 would insert at the beginning of the clause, which covers the status of EU law, the simple words:
"The sovereignty of the United Kingdom Parliament is hereby reaffirmed."
Amendment 10 would add to the end of the clause the simple phrase,
"and not by virtue of a common law principle".
The effect of that would be to prevent the courts from applying a common law principle, which has become entrenched in certain thinking in influential academic and legal circles, and in the Supreme Court. The explanatory notes suggest that it has also become entrenched in the Government's thinking.
I understand that the explanatory notes may be in the course of being corrected, as the European Scrutiny Committee and one of its main witnesses suggested. However, precisely what effect that will have remains to be seen. Perhaps we can debate that this afternoon. After all, the explanatory notes may have been prepared to aid interpretation of the statute-statute law is open to interpretation by the courts-but will the removal of the relevant words necessarily have the effect of preventing those most distinguished and eminent Supreme Court judges from departing from principles and doctrines to which they have apparently become wedded?
The two new clauses are directly relevant to clause 18 to ensure parliamentary sovereignty in view of the continuing trend towards judicial interpretation along the lines that I have already expressed. It is a matter of grave concern to many of us-far more than may turn up in the Lobbies today-that the courts, on a range of matters, have accumulated greater and greater influence, and, indeed, action, in relation to their judgments on Acts of Parliament. I refer not merely to interpretation or construction of the words but the underlying judicial activism, sometimes of a quasi-political nature. That has caused a great deal of concern, which has arisen particularly in the case of the Human Rights Act 1998. Although we are not discussing that today, there is an analogy because the charter of fundamental rights, which mirrors the Human Rights Act, is part and parcel of the arrangements under the Lisbon treaty. In that area of law, if there were any inconsistency between legislation-many centuries old and based on well established democratic principles-passed in this Westminster Parliament, would the judiciary presume to make judgments about the nature or legal effects of parliamentary sovereignty?
Will my hon. Friend deal with the canard put around by Foreign Office lawyers that if his amendment is passed and we add talk of sovereignty to the statute, judges will be given a chance to intervene because it is not mentioned elsewhere? Surely the issue is clear: Parliament is sovereign, so why do we not just pass this amendment?
My hon. Friend is right and I am grateful to him. Indeed, I suspect that many other colleagues, not only on the Back Benches but among the ministerial ranks, agree with me strongly. I also suspect that many Opposition Members feel exactly the same way. I hope, although without too much confidence, that one or two Liberal Democrats might take a similar view, although I would not wish to over-egg the pudding on that score.
I happened to be doing a television interview earlier today with Mr Chris Davies, who is a Liberal Democrat MEP. When I asked him what the problem was with incorporating this amendment in the Bill, he said he could not possibly disagree with it. So there are Liberal Democrats who agree, and I simply do not understand why the Government object.
I am grateful to my hon. Friend for that point. Indeed, I would be fascinated to know what would happen if any hon. Member were to appear before their local association and say, for example, "I just want to inform you that the sovereignty of the United Kingdom Parliament in relation to EU law is not reaffirmed." I think they would get a dusty answer from their constituents, especially as they elected that person to represent them in Parliament.
I am concerned to ensure that the courts are excluded from the construction or interpretation of the nature or legal effect of parliamentary sovereignty. It is of course still inherent in the arrangements, even after the Constitutional Reform Act 2005, that the judiciary are not only quamdiu se bene gesserint, as the Latin has it-in other words, they hold their position during good behaviour-but, in exceptional circumstances, it would be possible for judges to be removed, by an address by both Houses of Parliament, if they were to depart from that dictum. I would have said that some of the remarks relating to the sovereignty of Parliament that have emanated from some judicial circles in recent years have trespassed closely on the question of whether Parliament is the supreme law-making body in this country. I include that new clause because I want to exclude the courts in relation to section 3 of the European Communities Act 1972, but I am not attempting to extend its range beyond that.
I find it strange that the Government say that the Bill does not attempt to embrace the whole doctrine of parliamentary sovereignty. Of course it could not have done so, because the scope of the Bill would prevent that. For practical purposes, my amendments are all devised and worded in relation to EU law, but without prejudice to my concern about the fact that justices of the Supreme Court should not pick and choose between the different kinds of statute to which they apply these attitudes if they were to gain critical mass.
New clause 4 states:
"Nothing in Part 3"-
the provision relating to the status of EU law-
"adversely affects or shall be construed as affecting the existing constitutional law of the sovereignty of Parliament".
I then add, for the purposes of the scope of the Bill, the words
"in relation to EU law."
I have provided a fail-safe mechanism and firewall against any attempt by the judiciary to interfere with the sovereignty of the House. I have done that not simply because that sovereignty is centuries old in its derivation, but because, certainly since the mid-19th century, our democratic representation, which leads Members of Parliament to convene in this Chamber and pass laws, has derived its supremacy exclusively from that democratic right.
How does the hon. Gentleman reconcile his call for sovereignty of the House with the fact that, on
The amendments, if passed, would enable us to deal with those questions. In point of fact, I intend to come on to the implications of my new clauses and amendments in relation to a number of matters, including what I regard as the totally unnecessary and unacceptable jurisdiction being given to the European Court and other European institutions over the City of London. I have been talking about that in national newspapers for the best part of two and a half years.
Does the previous intervention not underline why we need my hon. Friend's amendment? There might be no doubt in our minds that Parliament is sovereign and that the functions and powers to which he has just referred are simply delegated to the European Union by this sovereign House, but because such misunderstandings exist, it is time for the House to make a clear declaration that sovereignty and ultimate legal authority still rest with the House of Commons.
I am deeply grateful to my hon. Friend for his intervention, because he is exactly right. Since 1972, there has been an accumulation that has now turned into a tsunami-a sort of Pied Piper of Hamelin, whom we all remember from our childhoods-as the accumulated rumbling and tumbling has gone on and on. We are now faced with a continuous stream of legislation divesting the House of its right to legislate, and this is an opportunity-one not invented by me in terms of the clauses proposed by the Government-to enable us to regain the sovereignty that belongs to the people of this country, the voters in general elections and Members of Parliament elected to the House for the purposes of protecting those voters' interests.
I certainly will. I am always glad to see the hon. Gentleman.
Just as we start this interesting debate, I would like to know whether the hon. Gentleman accepts the broad principle of pacta sunt servanda.
To which I would simply reply:
"Et sine lite loquax cum Palladis alite cornix".
I was talking about the crow that was quacking on the fence.
Is the hon. Gentleman now in favour of establishing a common European language?
As long as it subscribed to the classical arrangements that were provided for when we all actually spoke Latin properly, the answer would be yes.
There is obviously-we all know it in this Committee, and so do those outside this place, because it has been well publicised-a disagreement between the Government, the European Scrutiny Committee, of which I have the honour to be the elected Chairman, and me personally, regarding the meaning, nature and effect of clause 18. The disagreement falls into several categories, all of which can be categorised as matters of national interest. That is why I trust that Members of Parliament from all parts of the Committee will listen carefully to the arguments and vote according to these, and not according to any instructions that have been issued by the Whips.
With the greatest respect, we have already had one intervention from the right hon. Gentleman. Perhaps he would be kind enough to wait.
It would be ironic to say the least if the slogan "Working together in the national interest", which we saw at our party conference, were to become "Working together against the national interest". I do not believe that any Member of Parliament or any Minister would agree that the coalition-a "temporary alliance", according to the "Oxford English Dictionary"-should be employed in any way to pass legislation that would undermine parliamentary sovereignty. Incidentally, I am somewhat appalled at the lack of coverage not of this debate but of the European Scrutiny Committee report when it came out, given the fundamental nature of the issues at stake, and the quality of analysis not only in the report itself but in the evidence given to us by probably the most distinguished constitutional experts in the land.
I will turn first to the constitutional and legal issues that clause 18 raises and which were carefully considered for several weeks by the European Scrutiny Committee, which received evidence on a completely even-handed basis, which, because of the fundamental importance of the issues to our constitution and our democracy, was well worth doing. In the course of the proceedings it became clear that many of the constitutional experts concerned felt that, at the very least, clause 18 was completely unnecessary. The most compelling evidence-the evidence that we received from Professors Tomkins and Goldsworthy, along with a number of others-was that clause 18 was hazardous and dangerous, particularly in the light of the Government's assertions.
The issue of parliamentary sovereignty has been a matter of fundamental concern, importance and action since the 17th century. However, parliamentary sovereignty acquired a special and fundamental significance with the extension of the franchise in the mid-19th century, from the Reform Act of 1867 onwards-for example, through the Reform Acts of 1885 and 1884-and is undoubtedly the democratic basis of the United Kingdom constitution. However, irrespective of its now democratic basis, parliamentary sovereignty has become increasingly questioned recently-and only very recently-by reason of judicial assertions. Although on the tin, as well as in many repeated statements, we were told-I refer now to my hon. Friends on the Conservative Benches-that we would be getting a sovereignty clause or even a sovereignty Bill, clause 18 is emphatically not a sovereignty clause. For reasons that I will explain, the clause will actually undermine parliamentary sovereignty by encouraging judicial supremacy. The explanatory notes put forward the dangerous notion that parliamentary sovereignty is a "common law principle", and therefore subject to judicial authority. However, even if the explanatory notes were disavowed on this matter, the problem of judicial assertions relating to parliamentary sovereignty would not disappear.
The hon. Gentleman and his Conservative colleagues stood in the election on a manifesto that said on page 114:
"We will introduce a United Kingdom Sovereignty Bill to make it clear that ultimate authority stays in this country, in our Parliament."
Is he therefore disappointed that the Government have binned that part of the manifesto that he stood on?
Not disappointed-absolutely appalled.
The sovereignty of Parliament is the most important principle of the United Kingdom constitution, and has been since 1688, as confirmed by constitutional authorities without question until very recently. Indeed, the greatest judge in recent times, the late Lord Bingham, who died only a few months ago, stated in the Jackson case in 2005:
"The bedrock of the British constitution is...the supremacy of the Crown in Parliament."
I fear that the sovereignty of Parliament is in grave danger, however. There are judges in the Supreme Court whom Lord Bingham himself felt it necessary to name in black and white in chapter 10 of his book "The Rule of Law", published shortly before his death. He publicly criticised their judgments and their attitude to parliamentary sovereignty. In the Jackson case, Lord Hope, who is now deputy president of the Supreme Court, said that
"parliamentary sovereignty is no longer...absolute".
He went on to say that, "step by step", it "is being qualified". In his view, the rule of law, enforced by the courts, is the ultimate controlling factor on which our constitution is based. Lady Hale, who also remains on the Supreme Court, agreed with Lord Hope.
The fact that that case did not relate specifically to EU law does not alter the fact that the views expressed by Supreme Court judges can be as easily applied to cases involving EU law as to another judicial matter, contrary to the suggestions being put forward by the Minister in evidence earlier. It is not an answer to the question, as the Prime Minister has sought to suggest in a letter to me, for the Minister for Europe to state in his evidence to the European Scrutiny Committee that the Government are not seeking, and have never sought, to provide
"an all-embracing doctrine of Parliamentary sovereignty."
The Supreme Court justices, who have a process of selection outside the Judicial Appointments Commission, have a significant critical mass of those with profoundly Eurocentric credentials. I mention this because the sovereignty of Parliament, which is a constitutional doctrine of the United Kingdom, is also under threat by virtue of the European Communities Act 1972. The construction placed on legislation emanating from that Act affects the daily lives of the electorate in almost every sphere of present-day activity. According to the Government themselves, such legislation affects at least 50% of all economic laws in the United Kingdom, including those that impose burdens on businesses small and large that, according to the best estimates, have cost £124 billion since 1998.
The threat comes not only from the common law radicalism of such judges but from the EU law itself, which claims constitutional supremacy over member states' constitutions. We have also seen cases of terrorists appearing to get away with things and people not being deported when they should have been, as well as a whole range of other matters occurring under the European Human Rights Act, which, as I have said, is mirrored by the new charter of fundamental rights in the Lisbon treaty. We are witnessing a vast increase in the volume and impact of such legislation on the British people, and this is resulting in the anxieties I have described. Those anxieties could be allayed by my amendments, however, and it is time for us to turn the tide and make it clear exactly where we stand.
My hon. Friend is undoubtedly correct to say that the role of the courts has increased significantly, but is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.
I am extremely grateful to my right hon. and learned Friend for that. I agree with the sentiment; the problem is the practice. The difficulty is not only the tsunami of laws: attitudes within the Supreme Court, particularly since the Constitutional Reform Act 2005, have so enhanced its independence that, in conjunction with the arguments it is beginning to present, very serious questions are raised. It was the same with the Bill of Rights of 1688-it was not an Act, but it is regarded as one of the central instruments of our constitution-when Parliament said that it was going to put its foot down and set down a marker that Parliament was sovereign. That is what I am saying in my amendments.
Our right hon. and learned Friend Sir Malcolm Rifkind is surely correct in saying that there is always what the Business Secretary would perhaps call the nuclear option of withdrawing completely. Is not one of the reasons why we, as a sovereign Parliament, are feeling more and more repressed by this sort of judicial activist legislation that things are so often put forward as if they were absolute rights whereas they should be viewed as qualified rights? That is why a common-sense Parliament would say that someone had abrogated some of their rights by bad behaviour, for example, but these courts say that the rights are absolute so that no matter how badly people behave, they cannot, for example, be deported.
My hon. Friend makes a very important point, which I think all Members will want to take into account. As a lawyer myself-there are many other lawyers in the Chamber-I know that there always exists within the framework of the judicial or court system the adversarial nature of arguments based on words. One reason I came into this House after a fairly lengthy career in the law was that having had so much exposure to parliamentary legislation and its impact on people, I was conscious of the fact that however clever or adroit a lawyer might be in expressing his opinion in court or in his practice, the impact of law on the people who receive it-the voters-was quite a different matter. The common sense mentioned by my hon. Friend Dr Lewis provides a salutary reminder of the necessity to remember that we in this House are Members of Parliament. We are legislators; we are not lawyers. We are seeking to apply principles that will enable this country's people to be better governed.
Unfortunately, much of our legislation emanates from the European Union, for example, on issues such as food labelling. My hon. Friend Mr Bacon has just proposed a private Member's Bill to deal with that issue, but his Bill has no chance of becoming law unless we disapply the European element and pass it in this House. That is the problem, and it is, in part, what the supremacy of Parliament debate is all about.
I would like to question the hon. Gentleman on one of these principles. He is presenting this as a competition between European and British law and between judges and Parliament, yet he himself has said that these debates are happening and this authority has been conferred on British courts because of the European Communities Act 1972, which, unless I am very much mistaken, was an Act of this British Parliament. That rather reinforces the principle of supremacy.
If I may say so, that is not only true but precisely what I am seeking to deal with in new clause 1, which I tabled because the courts have been allowed this unwarranted intrusion the legislative process by judicial activism. Much of the European Communities Act 1972 invokes regulations, which come into effect in a different way from directives. In the new clause, the interpretation and the construction put on legislation by the judiciary should not under section 3 of that Act extend to the nature or legal effect of parliamentary sovereignty. What I am doing is exactly what Martin Horwood highlighted-dealing with the mischief, as I see it, created for that ultimate source of authority, which lies in this House as a sovereign Parliament, to be able to make and unmake laws as it wishes.
That does not necessarily mean that we would automatically take extreme positions. Some academic lawyers-very distinguished they are, too-have gone to extraordinary extremes in trying to demonstrate, in print, the necessity for their case, and have not done themselves a service in so doing. It is at a much more mundane level that the people of this country are unreasonably affected by some of the legislation that needs to be dealt with in Parliament, and which can be dealt with only by the sovereignty of Parliament in its traditional sense.
The sovereignty of Parliament is not an arcane constitutional curiosity or a theology; it is an essentially practical question. We in the House of Commons are elected. I am elected. We are all, individually, elected in our constituencies. What does that mean? It means that we are voted for by people who go into polling booths and register their votes for us individually. It is exclusively on that basis that our authority to legislate is derived. It is the very root of British democracy, and its Members of Parliament have an absolute duty to protect it on behalf of their constituents. A threat to parliamentary sovereignty is a threat to democracy.
Removing sovereignty from Parliament would pass that sovereignty to some other body, whether it be the European Union, the Supreme Court or any other organisation. Sovereignty is about giving ultimate power to the people's democratic representatives in Parliament, not to the courts and not to international bodies such as the European Union. It is that democracy which gives voters freedom to choose who governs them and how, and for which people have fought and died.
The hon. Gentleman is being extremely generous with his time. According to a report from his own European Scrutiny Committee,
"the term 'Parliamentary sovereignty' bears a number of meanings which can get confused."
Does not the risk posed by his amendment lie in the fact that it is so simple that it allows for wide and different interpretations that might be exploited by the very courts about which he seems to be so worried?
I should be more than happy to show the hon. Gentleman a book that is entirely devoted to the issue of the sovereignty of Parliament. The point is that there is no need to define parliamentary sovereignty. The Constitutional Reform Act 2005, which gave greater independence to the judiciary and the whole of which ultimately turns on the rule of law, does not contain any definition of the rule of law. Certain fundamental principles, and methods whereby we are governed, do not require definition for that purpose. They are applied, in the case of both sovereignty and the rule of law. There is a natural constructive tension between the two, but it is our job to protect the element that involves the sovereignty of Parliament.
I do not disagree with what the hon. Gentleman has been saying, but the fundamental rule of international law in regard to treaties is "pacta sunt servanda". Those who sign a treaty must abide by it. If Parliament does not like a treaty, it has a sovereign right to withdraw from it. We can withdraw from the European convention on human rights, which is concerned with deporting people and so forth, and we can do the same in regard to the European Union. That is not a nuclear option; it is a perfectly fair choice that this Parliament could take. I rather wonder whether that is the speech that the hon. Gentleman should be making.
I shall deal with that point shortly, but-with respect to the right hon. Gentleman-he will have to be a little patient.
As Members will have noticed, I have sought only to strengthen clause 18, which, as it stands, merely refers to the "Status of EU law". We were promised a sovereignty clause, and my amendment would achieve that. The clause as it stands would be subject to statutory interpretation, and it would be strange, uncertain and hazardous not to insert this provision in the framework of the European Communities Act 1972 itself. Clause 18 is a stand-alone clause. It refers to the "Status of EU law" and to section 2 of the European Communities Act, but it does not amend the Act. I am talking here about section 2 through section 3, when the judges apply themselves to any law. The clause is only six lines long, but it incorporates and absorbs within it every single piece of European legislation, so it applies to everything. However, although we know that law from the European Union emanates through from the 1972 Act, this measure does not amend the Act when incorporating the status of EU law. I am extremely concerned about that and find it very strange. In fact I will go further and say that I think the measure is deliberately contrived to make sure it is not an amendment to the 1972 Act.
I am grateful to my hon. Friend for drawing the House's attention to this crucial matter. As I understand it, he, like many of us, rightly wants to reassert the sovereignty of Parliament and make it clear that Parliament remains sovereign in all circumstances, and as I understand it, those on the Treasury Bench have the same aim. Given that his proposal seems to be stronger in this regard, can he think of any good reason why they should refuse it?
No, I cannot. I am a bit puzzled by that, but as I develop my speech I hope to be able to explain where I think the origin of the problem lies.
The Government and the Prime Minister fail either to explain why the 1972 Act was not amended in the way I have just suggested or to follow the route I have provided in my sovereignty Bills, and which has also been provided by the Bills that have followed from colleagues over the past few years. I have to say, however, that my sovereignty proposals of 2006 in relation to the Legislative and Regulatory Reform Bill were accepted by the current Prime Minister when he was Leader of the Opposition and by the party Whips. Indeed, I might add that the Minister for Europe voted for those arrangements. I am glad that he smiles, because the smile is on the face of the tiger.
The fact is that we went through the Lobby then. The Whips came up to me in the middle of the afternoon and said, "Bill, will you please be good enough to allow us to adopt your amendments and put in Tellers?" I was extremely impressed, and slightly flattered. They decided to do that, and then, having accepted that and having faced down the then Government with such incredible force, they went off to the House of Lords and whipped it through the Lords six weeks later. A degree of conviction clearly lay behind that, and it matches up rather nicely with the manifesto promises about the sovereignty Bill and so forth. We were nearly getting there-we were on the brink, it might be said. The question is: where are we now?
As I have said, it is well-established that there is an historical and constitutional tension between the courts and Parliament because of the democratic basis of parliamentary sovereignty, not by virtue of a common law principle, and I have also proposed an amendment to prevent that principle from being subject to judicial application. It is also necessary to include the reaffirmation of Parliament so that the courts would not be able to ignore those words, which are lacking in clause 18 as it is currently drafted, and in order to address the problem relating to the 1972 Act.
In one of the Prime Minister's letters to me-he has written two letters in the last few days-he claims:
"I can, of course, assure you not only that we have no intention to affect adversely the principle of Parliamentary sovereignty, but also that we do not believe that Part 3"-
that is a reference to clause 18-
"runs this risk. As you would expect, we made sure we looked at this matter very thoroughly."
My letter to the Prime Minister of
So our Committee came up with its conclusions, as a result of having followed the Prime Minister's advice to scrutinise as well as we have done, and he then turns around and says, through his Ministers and in letters to me, that
"we looked at this matter very thoroughly"
and that, "We do not believe that part 3 runs the risk that you are identifying." Basically, he said that we were wrong. It is a serious matter for a Prime Minister to say that to a Select Committee, which is one of the reasons why I am taking these steps. I hope that I am doing so with a good sense of timing and humour, because it is very important that we do not turn this into something more difficult.
However, I have to say that his reply of
"the words you have suggested would create uncertainty, because the term 'Parliamentary sovereignty' is not defined. There are no precedents for...referring to Parliamentary sovereignty in Acts of Parliament."
He also says that attempts to define it will be "difficult and complex".
With respect, that does not take us anywhere, because the expression "sovereignty of Parliament", which is the one I have used, does not require definition in statute, as any examination of constitutional authorities makes abundantly clear. Some of those authorities prefer to use the expression "legislative supremacy of Parliament", by which is meant that there are no legal limitations on the power of Parliament to legislate. I return to the words of the late Lord Bingham:
"The bedrock of the British constitution is...the supremacy of the Crown in Parliament".
In the words of one of our greatest constitutional authorities-according to Dicey-under our constitution, Parliament has the right to make or unmake any law whatever and, furthermore, no person or body has the right to override or set aside the legislation of Parliament. There is no definition of "the primacy of European law", nor, as I have just said, is there any definition in the Constitutional Reform Act 2005 of "the rule of law". The fact is that certain expressions do not require that degree of definition, so I do not agree with the Prime Minister or with the Ministers on that point.
One of our witnesses, whose evidence the Committee did not accept, argued that Dicey's exposition of sovereignty has been based on assumptions about representative democracy that, in his view, were flawed even in 1885 and could not be made today. That witness happens to be proponent of and is in agreement with the views of other witnesses who promote the common law principle, such as Professor Trevor Allan. We rejected that view, distinguished as those people are, as we rejected the common law principle as set out by the Government in their explanatory notes-but merely removing them from the notes will not influence this kind of thinking in the Supreme Court or in influential academic circles. One has only to see the amount of time and effort that has been expended on this in learned journals to realise that they are not going to be pushed out of thinking the way they do merely because we correct them in the explanatory notes.
The same could be said of Lord Justice Laws' views on constitutional statutes, which do not have special status in the traditional sense against any other statute. All are subject to repeal where Parliament so decides in the national interest. That is an advantage of our organic, unwritten constitution, so that we can, in a Burkean sense, adapt as and when necessary on firm and principled foundations. As Bradley and Ewing indicate by contrast to written constitutions such as that of the United States, the legislative supremacy of Parliament amounts to a fundamental rule of constitutional law and this supremacy includes the power to legislate on constitutional matters.
Under the short clause 18, which applies to all European laws, the vast array and impact of which are set out chapter by chapter throughout the Lisbon treaty, there is endless scope for the judiciary to apply principles that are alien to the traditional doctrine of parliamentary sovereignty where, as is the case with clause 18, there is a failure to incorporate the clause into the European Communities Act 1972 and a failure to reaffirm explicitly the sovereignty of Parliament and to eradicate by express words from judicial judgments the common-law principle. There is more to this than is apparent in clause 18 as it stands, and the Foreign and Commonwealth Office lawyers know that very well. I was persuaded that Ministers and the Prime Minister did not appreciate that, but I am now deeply concerned by the manner in which they have fallen for these new fancy notions with hazardous and dangerous consequences for parliamentary sovereignty and I urge hon. Members to take note.
It is important to make the statement that the sovereignty of Parliament is reaffirmed. It is at last necessary to stem the tide to which Lord Denning referred in his famous judgment in McCarthy's v. Smith, and that is what my amendment would do. This was omitted from the original explanatory notes and is now included in the Government's reply to the Committee, which is surprising. For too long, we have witnessed further seamless and ceaseless integration and it is time we took a stand, removing ambiguity, uncertainty and the gradual absorption of the EU into our own constitutional DNA-that is the point. This is about not just the European Court but our constitutional law, of which Parliament is an integral part.
On compliance with international obligations being obligatory if we were expressly to legislate inconsistently with the 1972 Act or with legislation made under it, the Minister for Europe has stated on several occasions that he does not regard it as a matter of policy. I must emphatically refute that assertion as being entirely inconsistent with the legislative supremacy of Parliament and its sovereignty. That was clearly stated in Mortensen v. Peters in which it was held that the courts may not hold an Act void on the ground that it contravenes general principles of international law. Let me mention Mr MacShane at this stage as he raised this question. Furthermore, the courts may not hold an Act invalid because it conflicts with a treaty to which the United Kingdom is a party. Statute is superior to prerogative in law and any treaties or legislation flowing from those treaties, even within legislation passed under the 1972 Act, is subject to parliamentary sovereignty and to repeal.
Suppose that we decided to disapply a provision on matters close to the Prime Minister, such as social and employment legislation, as he promised in 2005, or declined to bail out Portugal or Spain as part of the unlawful financial stability mechanism, or insisted on legislating within the United Kingdom for the City of London or decided to disapply investigative orders? On that and a vast range of other matters, if we thought it was in our national interests to do so, we could and should disapply EU law and require the judiciary to give effect to that law provided that it was clearly and expressly stated, whether or not it came from an international treaty or a European law. That includes repatriation, which has been specifically rejected by the Deputy Prime Minister. Furthermore, if we were to do that, we could not allow the judiciary flagrantly to contradict Acts of Parliament. That has never been accepted in our constitutional law, and the vagueness of clause 18 is, in the words of one of the distinguished witnesses, "an invitation to litigate". The uncertainty and ambiguity that would arise as a result of the need for interpretation would invite that part of the judiciary that does not accept the traditional view of parliamentary sovereignty to prevail. That is why I am being so specific in the wording that I have used: it is a marker of the same kind as the Bill of Rights, and it says, "You do not touch the sovereignty of the United Kingdom Parliament."
Is my hon. Friend not in danger of being so learned as to confuse himself about his own amendment? The sovereignty of Parliament was not created by an Act of Parliament, and it has never depended on an Act of Parliament. How can its restatement in an Act of Parliament given any real added value to its legitimacy?
Not for that reason.
Ah. He knows that he may have to answer that question during the debate. Judicial trends have recently moved along that route, and that movement is firmly entrenched, so it is time to call a halt to them, and that is what the amendments would achieve.
I realise I am on dangerous ground in quoting bits of the hon. Gentleman's report back to him, but in paragraph 43, the European Scrutiny Committee concluded:
"Overall, the majority of witnesses thought that if an Act of Parliament were to derogate from an EU Regulation or Directive, for example, and in so doing expressly and unequivocally disapply the ECA, the courts would be likely to follow the derogating Act of Parliament."
The majority of witnesses thought that clause 18 was at worst unnecessary. Only one thought that it was dangerous, so the principle that the hon. Gentleman has espoused is well established and perfectly defensible in British law.
That would be the case if it were accepted by the judges in the Supreme Court. It is precisely because we know that they are not inclined to take that view that the amendments are necessary. We are extremely grateful for the evidence that we have received from distinguished witnesses, but the problem is not what they have said, because they aided us in arriving at conclusions in the light of our need to defend parliamentary sovereignty. The problem does not lie in Parliament or with the witnesses; it lies in the assertions of a circle of certain judges and lawyers.
I am intrigued by the intervention of my right hon. and learned Friend Sir Malcolm Rifkind, who appears to be suggesting that Parliament can simply assert its authority over the judges by some means other than statute. I would like to know by what means it can do so. In the 17th century, it was violence, and I would prefer that Parliament should not have to resort to violence. I think that we should resort to statute, which would govern the judiciary, and we can direct them to behave according to statute.
I am grateful to my hon. Friend, because as I mentioned earlier, under the Constitutional Reform Act, there is no displacement of the doctrine and, indeed, the constitutional principle that judges may be removed by an address of both Houses of Parliament. Furthermore, as my hon. Friend has mentioned the 17th century, the 1610 case of Dr Bonham continues to apply, up to and including the 2005 Act. Lord Chief Justice Coke asserted that the common law could usurp Acts of Parliament-I am paraphrasing, but he was specific-but he was dismissed by Parliament for making such assertions. My hon. Friend's point is therefore well made, and was part of the constitutional settlement in the Act of Settlement 1701 and is still part of that settlement by virtue of the Constitutional Reform Act 2005.
Notwithstanding that, Coke was one of this country's greatest Chief Justices. The hon. Gentleman appears to be arguing that we do not need to define parliamentary sovereignty, because it is a well-established and well-understood concept, yet he is clutching a book, which I assume is by Jeffrey Goldsworthy, who has written a lengthy, dense book on the subject. Indeed, he has written two books on it, including a recent one, so it is clearly not as simple as the hon. Gentleman would like to suggest.
What is simple is that the concept of parliamentary sovereignty requires some explanation, and Jeffrey Goldsworthy does that. The question is not merely about parliamentary sovereignty; it is also about the manner in which the courts apply themselves to that doctrine. That is where the mischief lies and that is what my amendments would deal with.
I should like to respond to the Government's reply, published only yesterday, to the European Scrutiny Committee. The Government say that they have never claimed that parliamentary sovereignty is under threat from EU law, but a problem remains for them. The evidence to the Committee was that that could well change in future, given current judicial trends; that is exactly what we were told.
The Government claim that disapplying EU law, an issue that has just been raised, would have unacceptable consequences-with infraction proceedings, and so on. But I make the point clearly that according to the evidence that we received, not only are several countries already in breach of EU law-France's deportation of Roma immigrants, for example; no action was taken-but there is non-compliance on a massive scale. We know all about that, with the stability and growth pact.
There has also been the more recent failure to comply even with EU law itself in respect of the financial stability mechanism. Anybody with two brains to rub together would know that article 122 could not possibly justify- [Interruption.] Well, "Two Brains" could. No one could justify the use of article 122 for the purposes of that mechanism. If in the national interest, Parliament decides to do so, that is that. We obey EU law only in so far as it is a matter of statute and continues to be regarded as a matter of national interest.
"be decided by unaccountable judges."
He said that their role was to interpret not to make law and that the sovereignty of Parliament needed to be safeguarded not only from the EU but from current trends in judicial thinking. We were promised last year:
"you can be assured that you have a Conservative prime minister who will act in the national interest. And putting your country first is about the most important Conservative value there is."
The Prime Minister also said:
"The Conservative Party has always been a party that puts the national interest first."
I absolutely and entirely agree. By the way, it was Disraeli who said that the Conservative party was a national party or it was nothing; I agree with that, too.
The tragedy is that the coalition and the Liberal Democrat influence in the formulation-and subsequent discussions, I suspect-of clause 18 and the Bill as a whole have gone a long way towards undermining the commitment to putting the national interest first. I fear that, far from working together in the national interest-and it is not just on this one clause-we are now witnessing policies that in relation to matters as important as the sovereignty of Parliament are actually working against the national interest.
That could be remedied very simply by dealing with the omissions, dangers, ambiguities and hazards that the clause throws up and by accepting my simple and modest amendments. My challenge is this: will hon. Members vote down an amendment that says:
"The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed"?
We all know that it is not possible to constrain the judiciary in relation to EU law except by using clear words. Those are lacking in clause 18, and I have substituted words that have the appropriate effect.
On my hon. Friend's point, is he saying that if we had a Conservative Government, we would have a totally different Bill?
I congratulate my hon. Friend on that extremely perceptive remark. I entirely agree with him. If that were the case, we would not be where we are now. That is part of the lesson. [ Interruption. ] That might be true too, but who knows.
My new clauses and amendments to clause 18 would put the matter beyond doubt and I cannot for the life of me see why they cannot be accepted in the national interest. I believe firmly that they would have been accepted under a Conservative Government and we know that in 2006 we were almost there. The very fact that the Government might obtain a majority for the legislation should be of no comfort or satisfaction to anyone in the country, inside or outside Parliament.
In that past, those of us who have been criticised or perhaps underestimated for our predictions on Europe need only to look at the record to see how often some of us have been proved right in the national interest. Winning a vote does not always come into that category. I can only hope that failure to accept the clarification that my amendments would give will not, in a few years' time, have seemed in retrospect a price worth paying, rather than seeking to uphold on every score a coalition of parties that on matters relating to judicial supremacy, the European Union, a written constitution and the national interest are often fundamentally poles apart.
"The fault, dear Brutus, lies not in our stars,
But in ourselves, that we are underlings."
It is a great pleasure to follow a speech by Mr Cash. I strongly support his amendments and hope they will be divided upon. I shall certainly be voting for them and I hope that many Labour Members will also be supporting him. He has made his position very clear and, even to a non-lawyer such as me, he has made the issues understandable.
The sovereignty of Parliament is something that voters hold very dear. We are not a polity where people mistrust Government, as is the case in many other countries, where people have had experiences that have made them historically mistrust Government. We accept that Parliament decides things on behalf of voters and if they do not like what we do, they can get rid of us individually and collectively and change their Government. One of the reasons why, among other things, I so strongly support the first-past-the-post system is that it means that electors can chose Governments. I do not want to touch on sensitive matters now, but such a system means that Governments are not created by post-election deals between parties. Sorry about that, but there we are.
By and large, people choose their Governments and do not like their judiciary to be interfered with by politicians. The judiciary should be independent and should act on the basis of statutes, which are clear and do not leave too much scope for interpretation by judges, who are human beings and have political views like anyone else. Statutes should be very clear. The hon. Member for Stone is trying to make this bit of statute very clear, so that judges do not have wriggle room or scope for interpretation. Whether judges are Euro-enthusiasts or Eurosceptics, they must act according to a clear statute
We have seen what has happened on the continent of Europe. Let us consider the European Court of Justice, about which I am deeply suspicious because it clearly acts in a political way. It has done so on more than one occasion but, as a trade unionist and a socialist, I was dismayed by its judgments in the Viking Line dispute. It found in favour of the employers, which I thought was a political judgment, not a judicial decision. We want to avoid such a situation occurring in Britain. Lawyers should make decisions on the basis of laws that are decided by Parliament, particularly by this House, and there should not be scope for interpretation. That is, of course, most important in matters involving the European Union, because it is wilfully trying to assert laws over and above us in a supranational way, which many of us deeply resent and are suspicious of.
I have said many times in this House that I want a European Union that is a looser association of independent democratic member states where we come together on matters on which we all mutually agree for mutual benefit, but is not a supranational organisation imposing laws and giving itself powers that we cannot resist.
I wonder whether the hon. Gentleman would be an enthusiast for extending that principle to not only the European Union but the British Union.
I voted for devolution, so one could say that, but I leave it to the hon. Gentleman to pursue that point further. I would prefer to see us remain within the Union, perhaps with devolution, and I remain a Unionist in that sense.
I have been listening to my hon. Friend, and I have now caught up with where he was two paragraphs ago. He was arguing, as far as I could tell, for absolutely no wriggle room for judges-I think that that was his phrase. The danger of that is that it seems to sweep aside the whole history of English common law. Many of our laws have been developed by precedent in cases that have gone through courts where the judges have made an interpretation. Surely he is not really trying to sweep that aside.
I accept what my hon. Friend says, of course, but it depends on how much wriggle room there is. Even with a very well-drafted and carefully written statute, there is sometimes a degree of breadth in what can be decided. If we leave too much wriggle room, judges, being human beings with political views like anyone else, will take advantage; there is no question but that they would do that. It is our job to ensure that they cannot take advantage of this House and of the will of the people.
Does the hon. Gentleman agree that it is also becoming apparent that some statutes have deliberate ambiguity put into them, and that that may be the case with clause 18 in order to allow the courts to get their hands on it and to construe it in line with the principles that they are beginning to enunciate?
Indeed; the hon. Gentleman makes an important point. My concern is based on a suspicion that the Government are deliberately trying to leave this open and not have it pinned down so as to give wriggle room for future political events and developments. When something that appears to be so straightforward is resisted so strongly by a Government-even by my own when I was on the Government side of the House-I am always suspicious that there is a reason behind it, and that somewhere in the Government machine there are people wanting to ensure that something does not happen and that they have wriggle room in future. I do not want that to happen.
Like the hon. Member for Stone, I want to make it clear that the sovereignty of the British Parliament is retained as it should be. The people of Britain have made it clear that they want that to happen as well. Overwhelmingly, they are sceptical about the European Union, and it is our job to reflect that scepticism and not to give away to the European Union more potential power over this Parliament. We owe that to our electors. I certainly support them in that, and I support the hon. Member for Stone's amendment.
Underlying this entire debate about the European Union, sovereignty and the exact meaning of clause 18 is the fact that many Members of this House, myself included, would like to see a fundamental change in our relationship with the European Union. We would like to have a discussion about whether we control, or Europe controls, what happens in the regulation of the City, industry and business, and how we operate as a nation. There is an underlying desire on the part of many hon. Members to have a review of whether we should be part of the European Union at all. There is a desire to have a reworking of the Human Rights Act 1998 and a question mark as to whether it should be on the statute book at all-a concern that I share and that my constituents continually write to me about with a great level of invective.
In an earlier intervention, I mentioned the European systemic risk board, the European Securities and Markets Authority and the European Banking Authority. Does the hon. Gentleman accept that there is a case for systemic regulation when there is systemic risk? An opt-out clause would put us all at greater risk, so it is not a one-way street.
I would agree with the hon. Gentleman were we part of the single currency and the eurozone, but we are not. The systemic risks to our currency and their regulation should be dealt with at home. We should not, as a matter of principle, be part of bailing out the eurozone, leaving the exception of Ireland to one side.
In support of my hon. Friend's point, it is a great mistake to believe that there ought to be identical systems of financial regulation throughout the world, because that magnifies the possibility that a systemic risk in one market will affect all markets in the same way. Various and competing regulatory systems are better for global stability.
My hon. Friend makes a powerful argument. Many Conservative Members have been concerned about influence creep over the years. When we were in opposition, we were unable to do anything about that. Now is the time to be tight and specific in the influence that we have on European legislation.
The hon. Gentleman stated that he wants to revisit our membership of the European Union. I know that he is a new Member, but he stood for election in May on a manifesto-perhaps he opted out of this part of it-that stated:
"We will be positive members of the European Union".
It also stated:
"We believe Britain's interests are best served by membership of a European Union".
It went on to say:
"A Conservative government will play an active and energetic role in the European Union to advance these causes."
Did he not believe in that part of the manifesto when he stood in May?
I thank the hon. Gentleman for that helpful intervention. Allow me to explain. I did not say that I believe that we should pull out of the European Union tomorrow -[ Interruption . ] I did not say that. I said that underpinning this debate is a question about our future membership. I do not believe that I should be responsible for pulling us out of the European Union; that is a matter that the British people should decide in a referendum, if and when such a referendum is ever put to them. I reject entirely the idea of a European federation that mimics the United States, and of an autonomous legal system that governs that federation and is imposed automatically, as a corpus, on every member state.
Does my hon. Friend agree that nobody under the age of 53 in the United Kingdom has ever been consulted on the ongoing changing relationship with Europe, and that the likes of he and I have never had the opportunity to cast our votes on any of the changes?
I agree absolutely with my hon. Friend. Perhaps that matter should at some point be considered. I raise these issues of broad principle because if we are to rework our relationship with the European Union, it should be done by the Executive and Parliament, but whether we should stay in or leave the European Union is a matter for the British people to decide through a referendum.
Underpinning these matters is the simple principle that Parliament is sovereign. I have grave doubts about whether we should have clause 18 at all, because I am not sure that it adds anything. I have even graver doubts about the amendment of my hon. Friend the Member for Stone. As a lawyer, I worry about giving hostage to fortune, and I ask the House's forgiveness and consideration for my preliminary remarks on my general feelings and approach to Europe when I say that I am not sure that it is safe or sensible to have such matters enshrined in statute. Parliamentary sovereignty is not a common law principle, it is a constitutional principle of the United Kingdom that has long been recognised by the judges.
I see clause 18 as being a codification of the Factortame principle. It states:
"It is only by virtue of an Act of Parliament"
that EU law is effective in the UK and
"falls to be recognised and available in law in the United Kingdom."
In other words, we have European law because this House voted for it in former times and continues to keep the country in the EU. So long as we are in the EU, that is the choice of the House.
I completely agree. My anxiety about the codification process is that it is dangerous of itself, because it invites the courts to make judgment on the matter.
The hon. Gentleman referred earlier to referendums on whether we should stay in the EU or leave it. Would he support an amendment calling for such a referendum?
If the hon. Gentleman is planning to table an amendment on an in-out referendum, I will consider it. That is a matter for the House to debate, but I am concerned that he is trying to tempt me to stray from the subject matter of this group of amendments, which is sovereignty.
I am concerned about paragraph 106 of the explanatory notes, which states that clause 18 places on a statutory footing
"the common law principle that EU law takes effect in the UK through the will of Parliament."
As a lawyer, I know that that is not a common law principle, as I am sure most lawyers do. It is a constitutional principle. No one case decided that Parliament was sovereign. It is sovereign, and it cannot resile from that sovereignty.
I am not sure whether the hon. Gentleman is going to share his views on the federation or confederation of the EU, but he has said that someone would have to be 53 years old or more to have expressed a view on membership of the EU. Will he extend his principle a bit? When it comes to Scottish membership of the UK Union, a person would have to be 308 years old to have expressed a view. I warn him that things can slip from 53 years to 308 years, so will he extend the principle that he has just enunciated to the Scottish people?
Order. I am the most tolerant of Chairmen, but we really must try to stick to something remotely connected with clause 18.
Thank you, Mr Gale. You have saved me from having to get myself out of that one.
My hon. Friend made a point about the explanatory notes. Is not the real problem with clause 18 enunciated in paragraph 109 of those notes? It states:
"This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law."
That is what upsets the British people, and it is for that reason that we ought to put the matter of sovereignty and of our continued membership of the EU to the British people in a referendum.
Personally, I believe that it is wrong to see EU law as having primacy. I underline again that the UK Parliament is sovereign, and has decided to be part of the EU and allow its laws into our national life through the medium of the European Communities Act 1972. Equally, it is abundantly clear that the UK Parliament could change that position. To my mind, clause 18 amounts to a codification of that principle, which is clear from the Factortame case and from the metric martyrs, Thoburn case. In the latter case, as Members will recall and as paragraph 107 of the explanatory notes explains, it was argued that EU law
"includes the entrenchment of its own supremacy as an autonomous legal order".
That argument was rejected. It is an important principle to understand: there is no autonomous legal entrenchment from the European Union. It is taken into account and part of our law only because we have made it so.
I can do no better than quote Lord Justice Laws, who hit the nail on the head. He said:
"Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the European Communities Act."
When I was a law student, studying my books, I always viewed Professor Dicey's principle as giving voice to the doctrine of parliamentary sovereignty. It is quite simple-I always thought of it as: the last Act to hit the statute book takes precedence. If it says anything different from a previous Act, the latter is discarded to that extent.
Is not it also important in the case of the metric martyrs, Thoburn v. Sunderland city council, to note that it reinforced the fundamental point that European law could not limit Parliament in enacting legislation? The judgment reinforced the sovereignty point.
If I may continue, Lord Justice Laws went on:
"It cannot stipulate as to the manner and form of any subsequent legislation."
In other words, one Parliament cannot bind another. He continued:
"It cannot stipulate against implied repeal any more than it can stipulate against express repeal."
That is a simple and clear principle.
It is not terribly helpful to have a codification-I am concerned about that-but we do not need to say "is sovereign", because that poses the question of what "sovereign" means, as the Foreign Office pointed out. I do not think that that is a particularly helpful or constructive debate.
The real issue in the Bill is referendums and holding them on whether we should go any further into the EU. I pray in aid some of the submissions that were made to the European Scrutiny Committee. Paul Craig saw clause 18 as "sovereignty as dualism". He said:
"It says nothing about sovereignty as primacy, and it doesn't purport to reiterate, or iterate, the parent idea of sovereignty. There is no harm in having clause 18 if you wish it as a symbolic reaffirmation of the common law principle"-
I agree that it does no harm, but I am not sure whether "common law principle" is right; I think that it is a constitutional principle, so I slightly disagree with him-
"that a statute has no impact in the United Kingdom unless or until it is embodied in an Act of Parliament."
I think that Professor Hartley also made a submission to the European Scrutiny Committee-doubtless, my hon. Friend Mr Cash will correct me if I am wrong. He said:
"I think that the clause has value, because it emphasises that this is the law and this is the constitutional position. In my opinion, even without clause 18, courts would do what it says, but it would encourage and sort of strengthen them. I think that it has value even though, strictly speaking, it does not change anything."
Although I have personal doubts as a slightly picky lawyer about the sense of including clause 18, I believe that it does no harm and it also underlines the principle that the UK Parliament has decided on and voted for membership of the European Union.
I am afraid that I have to inform my hon. Friend that Professor Hartley did not address the question of the common law principle in his evidence. My amendments address that problem. The intrusion by judicial assertion to undermine parliamentary sovereignty is the problem, not the fact that the "status of EU law" says neither one thing nor another and is inherently unnecessary.
I pay tribute to my hon. Friend, with whom I agree on so many matters about the European Union. However, I regret to say that we must part company on the subject that we are discussing.
My hon. Friend prayed in aid Professor Tomkins, who gave written evidence, which stated:
"The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicial recognition of political fact rather in the common law."
I am not sure whether that is right. I do not see it as "political fact", rather as an important constitutional principle, which underpins-and has underpinned-all our dealings since at least the time of the Bill of Rights. Professor Dicey certainly gave voice to it.
Professor Tomkins continued:
That is true. The European Court of Justice is a highly judicially activist court, but it does not have authority in the UK directly through our membership of the EU. Its judgments have effect in the UK in interpreting European law because we have, as a Parliament, voted to pass that European law.
That takes us back to whether we need to state that the UK Parliament is sovereign, and to whether the codification of a constitutional principle, which is well understood and to which the courts have adhered time and again, is necessary. I think not. However, I think that we should be more honest, realistic and straightforward about what really concerns us: the fact that we have too many laws from Europe. There are too many interventions in relation to the Human Rights Act, which causes too many problems and too often gives the sense to many of my constituents that the innocent are punished and the guilty go free. That is shocking. Time and again, constituents approach us to express those concerns.
Does my hon. Friend accept that we promised a sovereignty Bill because of the very concerns that he has just outlined? People felt that our country was not sovereign and therefore the Conservatives stood on a manifesto of trying to assert that sovereignty. That is why some of us are worried about the woolliness of clause 18.
We stood on a manifesto that stated that we would rework our relations with the EU and that we would conduct a renegotiation. Of course, we are sovereign. I repeat that it is clear that we are codifying the UK's position as having a sovereign Parliament, and it is this place's choice to remain in the EU. I believe that we should reconsider the number of our laws that come from the EU. We should take back some particular positions. That reflects the manifesto on which I stood. I regret that the election ended without our having a majority to allow that to happen.
Does the hon. Gentleman agree that the common fisheries policy is a clear example of how sovereignty is affected? Days at sea, the number of boats and the quota were reduced. All those things were taken away-we gave them away. Surely we need harder and stronger legislation rather than less legislation. Fishing is a clear example of how things go wrong when we give away sovereignty.
There is much concern among Members of all parties about the common fisheries policy, the common agricultural policy, the whole thrust of financial policy and all the markets directives from the EU. There is also a general concern about the amount of activism and the way in which the EU stretches out its fingers excessively into our national affairs.
My hon. Friend is right. However, that is not a debate about the sovereignty of the UK Parliament. It is a concern that the EU has grown too much, extended too far, cost too much and intruded too much into our national life. It should cost less, intrude less and our relations with it should be reworked.
I underline again that I believe that clause 18 is a fair reflection and codification of the current legal position. I do not think that we need it, but I will wear it and live with it. I do not believe that we need to include extra stuff about sovereignty, which is not defined, and has not been defined in the amendments. The best thing we can do is be more straightforward about the need for fewer laws and less interference from the EU.
This Bill, and more particularly this clause, have had a long gestation. In November 2009, the then Leader of the Opposition promised that if his party won power there would be a United Kingdom sovereignty Act
"to make clear that ultimate authority stays in this country, in our Parliament."
He told his party that this was
"not about Westminster striking down individual items of EU legislation"-
but that its intention would be to
"put Britain on a par with Germany."
He said that the German constitutional court had consistently
"upheld that ultimate authority lies with the bodies established by the German constitution".
No doubt some Conservative party activists had some reservations about the idea of Great Britain being the same as Germany; nevertheless his proposal was warmly received.
As we have heard, the Conservatives went into last year's general election with a manifesto commitment to introduce a sovereignty Bill, but the coalition agreement stated only that the new Government would examine the case for such a Bill. At the Conservative party conference on
Perhaps my hon. Friend has noticed-as I have over the last six months-that there is not much point talking about the manifestos of the parties that are now in government, as it is clear that the very first thing they did on achieving power was to bin their manifestos and try to pretend that they had never existed.
My hon. Friend makes a wider, but fair, point. We have seen the evidence of that all too often in the last few weeks.
On the issue of manifestos, does the hon. Gentleman regret the fact that his party, when in government, broke its manifesto pledge to give the British people a referendum on the Lisbon treaty?
The hon. Gentleman's comments are inaccurate, because we did not give a commitment to have a referendum on the Lisbon treaty; we gave a commitment to have a referendum if there was a constitution, and there never was a constitution.
We have heard a long and well-argued speech by Mr Cash. Although many of us on this side of the House would not agree with many of his views, we recognise that the European Scrutiny Committee, and he himself, have done much to ensure that this House will give proper consideration to the Bill. I have to say that I was shocked that the Prime Minister allegedly tried to block the hon. Gentleman's appointment as Chair of the Committee. I was a member of that Committee for several years, alongside the hon. Gentleman, and I was pleased that when this Bill was presented to Parliament on
I note that it is the intention of the Committee to publish further reports on aspects of the Bill, and I welcome that too. It is important to note that this is the first occasion on which the Committee has conducted pre-legislative scrutiny; I hope that its work is recognised by the Government and that the practice will be more widely adopted. Even more importantly, I sincerely hope that the Government will change the Bill in the light of the Committee's report.
I have two disappointments. The first is that the Government did not allow the Committee sufficient time between First and Second Readings to hold thorough public evidence sessions. Given that the Committee stage of the Bill is being drawn out over several weeks-indeed, we do not even officially know when the other Committee days will be held-it is clear that the Government are in no rush to put this Bill on the statute book. Why then did they not allow the Committee more time for its evidence sessions? Are they afraid of more scrutiny?
My other disappointment is that the Foreign Secretary was not prepared to give evidence to the Committee. If he is so sure that his Bill is as robust as he says, why would he not appear before the Committee, put his case and answer questions? We all know that the reality of the Bill does not match the rhetoric that the Government employed. This so-called sovereignty clause is not what its advocates claim it is. It does not challenge the supremacy of European law; nor should it. It does not alter the nature of European law, change the relationship of European law or elevate the sovereignty of Parliament to a higher level.
In fact, what is most striking about the sovereignty clause is that it does not even mention the word "sovereignty". It is simply a reaffirmation of the status quo. As the explanatory notes admit, this is merely a declaratory clause. It reflects the dualist nature of the UK's constitutional model, by which I mean that EU law has effect in the UK only because of a decision taken by Parliament. In this case, the relevant legislation is the European Communities Act 1972. That is what clause 18 confirms, and as such it is nothing more than an exercise in legislative tautology-a puffed-up reiteration of what the law of the land already states.
So why have the Govt chosen to draft this clause? The reason we have been given is, in part, in the explanatory notes, which explain that in the metric martyrs case-Thoburn v. Sunderland City Council 2002-an attempt was made by counsel for Sunderland city council, Eleanor Sharpston QC, who is now the Advocate General at the Court of Justice, to argue before the divisional court that the binding effect of the EC treaty in domestic law depended, in part, on the higher principle of the supremacy of EU law. Eleanor Sharpston argued that the EC treaty did not owe its authority wholly to an Act of Parliament. That doubt, expressed by one individual in one case, is being used by the Govt to try to justify this clause.
Does my hon. Friend agree that the case also clearly rejected the notion that EU institutions or legislation could somehow limit the powers of Parliament?
Does the hon. Gentleman also accept that Eleanor Sharpston has moved seamlessly upwards and has now reached a very eminent position? Does he also accept that the Thoburn case was decided only at first instance, so no one is absolutely sure what would have happened if it had gone to appeal, or if another similar case were brought and those arguments-especially given Eleanor Sharpston's present eminence-were accepted?
It is extremely unlikely that her arguments would have been accepted by any legal authority given the categorical rejection of them in that case.
In other words, as Professor Hartley, one of the Committee's witnesses, stated, the metric martyrs-or Thoburn-principle is that
"the position of EU law in the UK and the sovereignty of the British Parliament ultimately depends on British law".
In apparent contradiction of the reference to the metric martyrs case, the explanatory notes say that the Foreign Office itself sent written evidence to the Committee that stated:
"Our own analysis has led us to the conclusion that there is no persuasive legal authority to support the contention that the doctrine of Parliamentary sovereignty is no longer absolute. Our assessment is that, to date, case law since 1972 has consistently upheld the principle of Parliamentary sovereignty. There is no uncertainty here."
Therefore, an argument that the Government accept is irrelevant is the only one that they can advance in their explanatory notes to justify the clause. How ridiculous can things get?
Small wonder, then, that when the European Scrutiny Committee concluded that
"the legislative supremacy of Parliament is not currently under threat from EU law",
most scholars agreed. Moreover, the Committee went on to say:
"we have no reason to doubt that Tho burn reflected the well understood and orthodox position, which left the constitutional principle of dualism intact and is unlikely to be overturned".
In view of that assessment, it is hardly surprising that the Government have tried two different arguments. The Minister for Europe said in a letter to his parliamentary colleagues:
"it cannot be denied that the issue has been the subject of legal and political speculation."
We know about the legal speculation. As we have heard, it was dismissed by Lord Justice Laws and even by the Foreign Office itself. But what about the political speculation? Where is that coming from?
We know from evidence submitted to the European Scrutiny Committee by Jean-Claude Piris, director general of the legal service of the European Council-in other words, its legal adviser-that in his opinion clause 18 changes nothing. He believes that it reaffirms the doctrine of UK constitutional law under which EU law has effect in the UK by virtue of an Act of the UK Parliament. Furthermore, he went on to say that the clause is consistent with declaration 17 annexed to the final act of the intergovernmental conference, which concluded the treaty of Lisbon, and with the case law of the European Court of Justice. It is clear, therefore, that there are no threats coming from European Union institutions.
We do not imagine that any of the Government's Conservative Back Benchers have questioned the sovereignty of Parliament, and I can assure the Committee that it has not been questioned by any Labour Members. Can it be, however, that the sovereignty of Parliament has been questioned by the Liberal Democrats? After all, they are the most pro-European party in Britain, and of course a former leader of the Liberal Democrats, Mr Kennedy, is the president of the European Movement. Furthermore, a former leader of the Liberal Democrats in the European Parliament, Andrew Duff, is a well-known European federalist.
That there is political speculation is one of the new arguments. Another has been suggested by the Minister for Europe in his letter to his own MPs, and more recently was advanced by the Foreign Secretary in The Sunday Telegraph at the weekend. He said:
"In its sovereignty clause the Bill also deals with one potential but important problem for the future."
Having accepted that there are no current valid legal arguments, the Government are now pointing political fingers at unnamed politicians, and even suggesting that clause 18 is being introduced because of a hypothetical problem that may, or may not, materialise at some time in the dim and distant future. At the same time, the Government accept that clause 18 is not really needed at all, because Parliament is already sovereign. It is hardly surprising, therefore, that some have referred to the clause as being indicative of the Bill's confusion, contradictions and general lack of clarity.
Does the hon. Gentleman think that there is ever the danger that if a sovereign authority gives away too much power, it ceases to be sovereign? That is what happened when the sovereign Crown ceded too much power to Parliament. Is he worried that his party gave away too much power to the EU?
I do not believe so. It is important, from time to time and in specific circumstances, to pool sovereignty in the mutual best interests of a collective of states. That is what the European Union is all about.
Whatever the arguments publicly advanced, we all know the real reason for clause 18. It is the result of the Conservative party's desire to placate its Eurosceptic Back Benchers. As we will see this afternoon, however, the Government have been rumbled. The likes of Mr Redwood will not be bought off with flimsy window dressing. In The Times this morning, the latter wrote that the Bill is "shadow-boxing" and not a substantive piece of legislation. Interestingly enough, however, the hon. Member for Stone referred to the explanatory notes and the fact that the Government might-he said-be on the verge of rewriting them. Well, that is certainly news to us. If the Government intend to rewrite the explanatory notes, surely it would have been courteous, at the very least, to inform the Opposition of their intention. I look forward to hearing from the Minister whether that is true, and what his intentions are.
Our concern, however, is that the House is spending an inordinate amount of time on a clause that achieves absolutely nothing more than we have already. It is an exercise in smoke and mirrors that is neither here nor there. I have to say, however, that this debate has brought to the fore important issues.
Does my hon. Friend agree that if there is a risk to sovereignty it is from this Conservative Prime Minister, who last autumn signed up to EU authorities that, as I said earlier, can impose binding standards on securities, markets, insurance, occupational pensions, banking and systemic risk? We can talk about the words, but what counts is the action, and the actions of the Conservative Prime Minister are not to cling to sovereignty but to give it away.
That is an interesting point. The Prime Minister, rightly or wrongly, certainly believes that it is in Britain's national interest to adopt from time to time measures that he perceives to be in Britain's national interest and then to encourage Parliament to follow suit. We have to decide whether that is the case-but that is another debate.
The debate has brought to the fore a number of important issues. I am thinking in particular of the extremely important argument made in the European Scrutiny Committee's report on the true nature of the threat to parliamentary sovereignty. The objective evidence presented by the Committee to the House leads it to conclude that
"if the legitimate supremacy of Parliament is under threat, it is from judicial opinions in other areas of law",
not EU law. That is true. I am thinking in particular of the Jackson case of 2004, which concerned the constitutional validity of the Hunting Act 2004, and in which three Law Lords indicated that in certain circumstances the courts had inherent powers to disapply legislation.
I am worried that the Government do not appear to recognise that there is a real debate taking place on this issue between those who argue that the absolute supremacy of Parliament remains unqualified-as explained by Dicey, the British constitutional scholar-and those who believe that sovereignty of Parliament is a construct of common law. According to those who hold this view, the sovereignty of Parliament is open to revision by the courts. In the Bill's explanatory notes, the notion of parliamentary sovereignty as a construct of common law is expressed as though it were a matter of fact and entirely uncontroversial. Similarly, a one-page note on the Bill produced by the Foreign and Commonwealth Office states:
"there is a common law principle that the UK Parliament is sovereign".
It is dangerous to view the legislative supremacy of Parliament as an offshoot of common law, because it means that the principle will vary according to the judicial whims of judges at any given time.
I am somewhat encouraged by the Opposition's line of argument because, as I explained in my speech, my amendment 10, which deals specifically with excluding the common-law principle, does not derive entirely from the explanatory notes but-as the hon. Gentleman has just reminded us, and as we knew from evidence to the European Scrutiny Committee-from the fact of judicial trends, which will not go away. Whatever happens to the explanatory notes, we are still left with a problem, and I believe that the Foreign Office has known this all along.
The hon. Gentleman might well have a point. This is something that has to be looked at carefully. I am mindful of the fact that although we are in Committee today, this is not the end of the process. I am sure that we will return to the issue on Report.
It appears that the Government hold the view that parliamentary supremacy is a construct of common law. However, if that is the case, it could be argued that parliamentary sovereignty could be qualified by the courts and that this would not be opposed by the Government. Professor Tomkins, who has been referred to already is the distinguished chair of public law at the university of Glasgow. He submitted extremely important written evidence before the European Scrutiny Committee and gave extremely significant oral evidence. Let me be clear: Professor Tomkins is not anti-European. He specifically said in his written evidence that he considered that
"it is in the United Kingdom's clear interest to remain a committed member of the EU."
However, he expressed his concerns to the European Scrutiny Committee about the supremacy of Parliament and common law as follows. Referring to the Jackson case, Professor Tomkins said:
"one of the things that that case most sharply and, to my mind, alarmingly indicates is that even our highest court, as was, is not sure what to do with parliamentary sovereignty. It isn't sure what the legal basis for parliamentary sovereignty is. It isn't sure how much parliamentary sovereignty is under challenge. It isn't sure how much parliamentary sovereignty continues to represent the group 'norm' or the 'bedrock' or the 'keystone' of the constitution-all of those words are used.
The reason why the Jackson and the Attorney-General case is so long...is that so many of the judges who decided that case...wanted to use the case as a vehicle for the expression of a bewildering variety of different views about the past, present and future state of parliamentary sovereignty. The case, I think, is authority for not much, but it is authority for the proposition that we have the right to be concerned about what is going to happen to parliamentary sovereignty in the hands of the courts."
That is a powerful statement, and all of us who believe in the importance and the supremacy of Parliament should take note.
As I have tried to argue, the Opposition believe that clause 18 is otiose and unnecessary. It is purely declaratory and merely reaffirms what is widely understood to be the legal and constitutional position regarding the application of EU law in the United Kingdom.
I am rather confused about the Labour Front-Bench position. Having apparently endorsed the fear that there is judicial mission creep, the hon. Gentleman now seems to be rejecting a clause that seeks to resolve that issue. What exactly is the Labour party suggesting? Would it propose an alternative clause, or would it prefer that the Bill did not exist? What is the Labour position?
I am just coming to the amendment that we are proposing, which would allow an opportunity for the issues raised by the hon. Member for Stone and others to be considered in a rational and thoughtful way. In the spirit of generosity, we accept that others may have genuine doubts. That is why we tabled amendment 52, which would ensure that the Secretary of State made an annual report- [ Interruption. ] The Deputy Leader of the House has read our amendment. Well done. Amendment 52 would ensure that the Secretary of State made an annual report to indicate whether parliamentary sovereignty had been challenged or questioned in the British courts or the European Court of Justice. Our amendment spells out in clear terms the duality principle, whereby the law of the European Union is totally dependent on the European Communities Act 1972. We see such a report being presented to Parliament and being voted on annually.
With all due respect to the hon. Gentleman, I shall have to restate my question. I was not asking whether he was proposing a report to find out the Secretary of State's position; I was asking him what the Labour party's position would be. What would he want in that report? What would he expect?
We would want an accurate reflection of what has been happening in the British courts and the European Court of Justice. I want to see the objective evidence presented to us. It is interesting that we have not heard from the Government in this debate as to whether there is more justification than what they have so far presented to us. I suspect that there is none, but there are many Conservative Back Benchers who believe that there is ample evidence. What I am saying is that there is certainly an indication that there are more things to be considered.
The hon. Gentleman will know from his time as leader of the Labour MEPs that for those of us who are concerned about sovereignty in the United Kingdom, there is another problem-the mission creep that is omnipresent in the European Parliament across most political groups, including the European socialist group, which is probably the worst in that respect. Does he not believe that if his amendment were to have any weight and value, it would be worth looking at mission creep from the European Commission and the European Parliament as well?
I am not sure what the "mission creep" that the hon. Gentleman is talking about really is. We have been talking about the sovereignty of the British Parliament, and we are pretty clear that the European Union exercises its powers through European law in this country by virtue of an Act of this Parliament. That is undeniable, and it is an important principle on which I hope every Member of the House would agree.
I fully appreciate that many Members of the House have sincerely held concerns. Although we would argue that some of those concerns are exaggerated, we should nevertheless have an annual review-an annual report, an annual debate and, yes, an annual vote. If it can be shown that the sovereignty of Parliament is being questioned or challenged in the courts, either at home or abroad, we will have a strong basis on which to act.
I am hoping that my persistence will pay off. The hon. Gentleman appears to be saying that on the one hand, clause 18 is otiose and, according to all the eminent sources to whom he has referred, that there is no particular threat to parliamentary sovereignty. However, he also seems to be conceding that there is some generalised concern, because he is calling for an annual debate and an annual report on the subject. Let me once again ask: what would the Labour party do? Would it also suggest such a clause? Is the hon. Gentleman suggesting that we should restate parliamentary sovereignty in statute or not?
The hon. Gentleman is making hard work of this-or perhaps he is not listening as carefully as he might. Our starting point is that we would not have this Bill in the first place. We would be talking about the issues that really matter to the people of this country and the people of Europe. Nevertheless, we recognise that we are in the here and now. The Government have introduced the Bill, dedicating much parliamentary time to it, and, as a good Opposition, we are determined to make the best of it. We are simply saying that, on the face of it, there is no case for clause 18. However, we have respect for the concerns that have been expressed, both here and elsewhere. We are saying that we should be careful to take into account all the points that are expressed, clearly and effectively. However, let us not dwell on them on a one-off basis and make a definitive decision here and now; let us instead have an ongoing process, with an annual review and an annual report. Let us ensure that the Government are fully accountable to the House of Commons. That is a straightforward position.
The hon. Gentleman will have to wait and see what the Opposition decide to do. As true democrats, one of the things that we want to do is listen to the debate. We are not entering into the exercise with a closed mind, and that is why we have tabled our amendment. We want to ensure that the debate does not finish here and now, but continues throughout the Bill's progress through Parliament. I referred to Report stage earlier.
There is also the important issue of parliamentary sovereignty and all the complex ramifications involved. An ongoing debate has been started by the Government, but let us ensure that we have an annual debate on this matter in the House, based on a report produced by the Government. I very much hope that the House will accept our amendment. There may be different views on the conclusions that such reports would reach, but let us all recognise that the way to have an effective debate is to have an annual debate based on an annual report.
Many points have already been raised today, and I have listened carefully to the arguments, particularly those put forward by the hon. Member for Stone. I urge all colleagues to think carefully about supporting amendment 52. Clause 18, as it stands, means nothing from any point of view, but our amendment would make it far more meaningful. If our amendment is not successful, clause 18 will take us forward neither a millimetre nor an inch. As it stands, it is a bland restatement of a law that already exists. European Union law is enforceable in the United Kingdom only because of legislation made by this Parliament. That is a self-evident truth and, with or without clause 18, it will not be altered.
The Crown was sovereign once. It is intriguing that we are more than two hours into this debate but so far we have talked only about parliamentary sovereignty, even though the sovereignty technically still belongs to the Crown in Parliament. We all know about the events that took place over several hundred years, particularly when they were accelerated during the 17th century revolution and crisis. There was a large transfer of power from the Crown to Parliament. When a sufficiently large transfer of power takes place from someone who was sovereign to those who would be sovereign, a point is reached at which that sovereignty passes because enough power has been surrendered and the arrangements have changed sufficiently.
As other Members have suggested, we need briefly to look at how that very big transfer of power occurred in the 17th century from the Crown to Crown in Parliament and, in due course, effectively to Parliament standing on its own. One important factor was that Parliament was very good at aggregating power to itself. In those days, it decided to be very nice to bankers, which worked very well for it, because it got the City of London and the men of finance on its side. In those days, the English Navy did not have French ships in it, and Parliament made sure that it responded to the English Parliament. Parliament also took the precaution of hiring and training and paying-something quite unusual in those days-the best army in the country. It got over the problem of competing armies and, in due course, established that it had military power and could command the Army.
Parliament also needed to deal with the judges. It was established during the revolutionary period that judges were necessary and that, according to our current tradition, they had to be independent and should not interfere in parliamentary matters by trying to make the law. They simply had to deal with the law as Parliament provided it. We therefore eventually ended up with a very powerful Parliament.
In the 19th and 20th centuries, Parliament did something that everyone in the House is now united in admiring: it made the exercise of power by Parliament a democratic matter by extending the franchise until practically every adult in this country was able to participate in elections. That gave Parliament the authority of having a democratic voice and mandate. The question that we are debating today is whether that great democratic settlement, in which most Members believe, is now under threat from judge-made law, from European-made law and from other centres of power. Could parliamentary sovereignty come under pressure in the not-too-distant future? Is it being damaged because too much power is being transferred? These questions account for the nervousness, certainly on the Conservative Benches, about the degree of power that has already been surrendered by successive Parliaments over the years, particularly under the most recent Government following the treaties of Nice, Amsterdam and Lisbon. Under those treaties, a large number of areas were transferred either to joint decision taking or to sole European decision taking.
That means that the exercise of power in many important areas of activity, including regulation, the expenditure of money and the provision of public services now emanates from the continent. Those powers are trying to establish their own democratic credibility through the European Parliament. They are also trying to establish their own judicial credibility through the European Court of Justice, and their own administrative credibility by strengthening the powers that are exercised around the various collective corporate tables that constitute the ever-evolving, and ever more powerful, European Union settlement.
The nub of our debate today is whether there is something that this Parliament could and should do, no matter how much power has passed, how many decisions are taken through the European Union and how much money it now takes to itself and spends on our behalf, to make it clear that, should we want those powers back, we can have them back. If we wish to change or moderate what the European Union is doing, do we have every right to do so because we are still the sovereign?
Some of us fought long and hard to keep the currency under British sovereign control. These arrangements involve a British sovereign and preserve the settlement of the Queen in Parliament, and the Queen's face appears on the banknotes of the realm, but we all know that they are Parliament's notes and that they represent an expression of parliamentary sovereignty. Indeed, it was this very Parliament that, by a majority, approved the previous Government's decision to print a lot more of those notes-or electronic notes-as an expression of what that sovereignty can do for the people of Britain. We can argue about whether that was a good thing or a bad thing, but it was an undoubted expression of sovereignty.
Wisely, Britain already has a number of opt-outs from the European Union. I am thinking specifically of the single currency; it was to the great credit of our former leader that he kept us out of the euro. Would not a test arise, however, if Britain decided to opt out of something that we currently opt into? For example, if we chose to withdraw from the common fisheries policy and to place our own historic fishing grounds under democratic British control, would not that represent a test of our sovereignty?
Indeed; the hon. Gentleman makes a powerful point. I, too, would like us to opt out of the common fisheries policy. I would like us to elect a Government in this country who had the necessary majority to go off to Brussels and say, "It is now the settled will of this Parliament that we want different arrangements for fishing, and if you will not grant them through the European Union arrangements, we would like to negotiate our exit from the common fisheries policy." That is exactly the kind of renegotiation that many of my hon. Friends were elected to achieve, and, had we had a majority, we would have wanted our Government to do something like that. There are a number of other policy areas, some of which are more politically contentious across the Floor of the House, where we think we can make better decisions here than are being made in our name by the European Union.
If such renegotiations could be achieved, we would clearly have reasserted, or asserted, the sovereignty of our Parliament. If, however, they can never be achieved, it is difficult to see how Parliament could still be sovereign. If we are saying that nothing can ever be changed once it has been agreed under the various procedures in Brussels-including the many measures that the British Government did not want or on which they were outvoted-we cannot say that we are sovereign any longer. We would then be in a relationship with the European Union that would fall short of our preserving parliamentary sovereignty.
Tonight we are discussing a narrower, but crucial, legal issue that has been well highlighted by my hon. Friend Mr Cash and the European Scrutiny Committee, whose perception is first class in informing the debate. I do not need to repeat all those arguments. Suffice it to say that I support the important amendments proposed by my hon. Friend. As I understand it, we have a Government who say that they wish to do all they can to reassure people in this country that we are and intend to remain sovereign. They do not wish to pick a fight with Brussels, and we are not asking them to do so tonight. They say, however, that should a disagreement arise in future that cannot be resolved through the usual channels, it will be settled here. I am very much in favour of that; it seems to me to be a wholly admirable and sensible place to take the debate. If that is the intention, it proves that Parliament is still sovereign.
We are arguing only about the words used to carry out that intention. It is one of those rare magic moments when the Conservative party is completely united on its intentions. The Government's intention to reassert parliamentary sovereignty warms the cockles of Conservative Members' hearts. It is wonderful to know that in another debate we can have a referendum when anything important happens. There may be some arguments about what is important, but we welcome the spirit. Again, we are at one with our Government.
When eminent lawyers and colleagues who have studied this matter at much greater length than I have say to the House that they have studied it carefully, that they have what sound like moderate and sensible words that basically repeat the Government's policy and that it would be helpful if those words were written into the legislation, my feeling is-unless the Minister has a very powerful speech coming up-what is wrong with that? If the Minister wants to reassert parliamentary sovereignty, why cannot we just say that in the Bill? It is exactly what my hon. Friend says -it does not seem difficult, so will the Minister please humour us on this occasion?
The fact remains that if we succeeded in amending the Bill in this way, we would not be truly sovereign in future unless we had the will and determination to shape our own destinies, should the need arise. I hope we can do it by agreement. Any sensible person wishes to do it by agreement, given how far we are in this thing with our European partners and what a mess they are in.
The right hon. Gentleman makes an eloquent case. He and I might disagree on whether we want to withdraw from the common fisheries policy, but would he have seen any constitutional bar to that taking place had a Conservative majority Government taken office? Surely, if this was in the manifesto, he must have believed that it was possible to achieve it under the present constitutional arrangements.
Withdrawal from the common fisheries policy was not in the manifesto, although it might have been in the personal manifestos of some of my right hon. and hon. Friends. I gave it as an example because I believe it has a great deal of cross-party support. Most people think the common fisheries policy is extremely badly run and is not in the interests of the fish or the fishermen. Casting all those dead fish back into the sea is not my idea of conservation and it does not bring cheap fish to the fish market either, so it does not seem to be good news.
Successive Governments have always said that they quite agree with those of us who make such points, but they have never managed to negotiate a better deal. Would it not be wonderful if the Government said, "If we cannot negotiate a better deal next year, we will use British parliamentary sovereignty to pull out of the CFP"? I would like to do that and I do not think it would be tantamount to leaving the European Union. It would be pretty cross, but it would probably do a deal with us because it would be more embarrassing to have a sovereign Parliament taking unilateral legislative action than to do a deal. I hope the EU would do a deal; it would be sensible for it to do so.
If we are not prepared at some point to assert our power, we lose our sovereignty. Just as the Crown lost its sovereignty, became the Crown in Parliament and eventually lost practically all its real powers, so this Parliament is losing its powers. If it goes on losing them, without sensible provision being made of the kind proposed by my hon. Friend the Member for Stone and without at some point standing up for a better deal for Britain, this Parliament, too, will no longer be sovereign.
I congratulate the European Scrutiny Committee on its excellent report. I commend it for the clarity with which it looked at the Bill and for the evidence it took. I concur with my hon. Friend Mr David that it was disappointing that the Foreign Secretary did not deem it necessary to come before the Committee to explain why this Bill is so important.
Basically, the Bill is a dog's breakfast. It is full of contradictions. On the one hand, it tries to constrain the sovereignty of Parliament by committing future Parliaments to referendums; on the other, through clause 18 it tries to put on the statute book support for parliamentary sovereignty. Clause 18 makes no difference whatever. That is the important point to be made here, and one that was made in the excellent European Scrutiny Committee report.
The reason for the Bill and for clause 18 was evident in some of the earlier contributions, particularly in the speech of Charlie Elphicke, who is no longer in his place. It is to placate the Eurosceptic wing of the Conservative party-something that it is completely failing to do, judging by the smiles on the faces of some Opposition Members and by some of the earlier contributions.
There is a wider issue, which is that the Prime Minister has now been caught out. He tried to reposition the Tory party as no longer the nasty party, so he needed to adopt a more positive policy on Europe. The number of Members going through the Lobby to support the amendment moved by Mr Cash will unmask the fact that many Conservative Members want withdrawal from Europe. I completely accept that people have that view, although it is not one I agree with. It is an honest approach, but if people were being really honest tonight, they would not merely propose amendments to this feeble and unnecessary clause, but say what they really want, which is withdrawal from the European Union.
It is important to recall the European section of the Conservative manifesto. As I said earlier, it has either not been read or has been read selectively by some Members-the hon. Member for Dover could not remember that he had given a strong commitment to be a positive member of the EU. The Conservative manifesto states:
"The European Union has a crucial part to play in enabling the countries of Europe to meet these great challenges of the 21st century. A Conservative Government will play an active and energetic role in the European Union to advance these causes."
The Conservatives also made a clear commitment-it has clearly now been ditched-to bring in a sovereignty Bill. Page 114 of the manifesto states:
"We will introduce a United Kingdom Sovereignty Bill to make it clear that ultimate authority stays in this country, in our Parliament."
Nothing could be more unequivocal, but it has now been ditched; instead, we have clause 18. It tries to give the impression-rather like the great Tory Lady did in her handbagging of Europe-that the Conservative party was going to be tough on Europe. Clearly that is not the case, as the policy has been ditched in the coalition agreement. I know from talking to some Conservative Members that they suspect that European policy is yet another thing that the Conservative party has had to sacrifice in its shotgun marriage with the Liberal Democrats.
If the hon. Gentleman had spoken to me a couple of days after the general election, he would know that my views were very clear-that under no circumstances would I want a union with the Liberal Democrats. Part of me feels sorry for individual Conservative Members as they have to work with a party with which they are not at all comfortable and sacrifice some things that were very dear to them.
On this side of the House, we work with the Liberal Democrats, and there is one aspect of their manifesto on which my Conservative colleagues-certainly those on the Back Benches-are happy to work, and that is their very clear manifesto commitment to an "in or out" referendum on the EU.
If there is a referendum, it will be interesting to observe the actions of the coalition. As on many other occasions, it will behave rather like Dr Dolittle's pushmi-pullyu. Let us be honest: the hon. Gentleman and others are unlikely to agree with the Liberal Democrats on most European issues, given their clear view that nasty foreigners across the water are somehow doing terrible things to this Parliament and this country.
Is there not an alternative reading of the manifestos? The Liberals' "in or out" referendum offer led to their losing five seats, while the Conservatives' isolationist sovereignty Bill offer led to their failure to secure a majority. I suspect that if the Conservatives had remained true to their vocation of being internationalists, they might have secured that majority. It was their Euroscepticism that gave them only 303 seats. That is an alternative reading of all the figures that have been given.
I imagine that it is, but the real point about the modern Conservative party is that it has not changed. It is virulently anti-Europe. At the time of the election, however, the Conservatives had to give the impression that they had put all that behind them.
Another view-amplified by the hon. Member for Dover-is that these nasty people in Europe do things to Britain in which our Parliament has no say, and that if we do not stand up and make token gestures such as this, those nasty foreigners will take away the rights that we have developed over many centuries. It should not be forgotten that, early in this country's history, the Norman invaders spoke Norman French, and for a long time northern France was part of England.
The hon. Gentleman has made a compelling point about Conservative Back Benchers, but is not part of the problem the fact that the Notting Hill set-the Prime Minister, the Chancellor and the Foreign Secretary-agree with the Liberal Democrats more than they agree with their own party? That may be why the Prime Minister has been so enthusiastic about spending much more time with the Deputy Prime Minister than with fellow members of the Conservative party.
I would not wish to encroach on private grief-
In some cases, possibly. However, it is clear that some members of the Conservative party feel more comfortable with Europe than many of those who are present this evening.
It is important to establish what clause 18 does and does not do. Members who have not read the report from the European Scrutiny Committee will find the details well worth examining. According to paragraph 81:
"Clause 18 is a reaffirmation of the role of a sovereign Parliament in a dualist state, nothing more, nothing less."
The suggestion in the explanatory notes that-as has already been said-clause 18 will put an end to the notion that these nasty Europeans will do things to us is not justified.
I did not intend to intervene, but my hon. Friend keeps talking about "nasty Europeans" as if this were an international issue. May I suggest to him that criticisms of the European Union, rather than of Europe, are strong among working people in Europe, including trade unionists? That is evidenced by the referendum defeats incurred by Europhiles who have tried to push through measures that are unacceptable.
I entirely agree. I am another of those who are willing to criticise European institutions on grounds of waste and the un-transparent way in which some things are done. The fact is, however, that-as has been made clear today-some Conservative Back Benchers, along with mainstream Conservative associations, believe that Europe is a thoroughly bad thing. I am sorry, but I do not share that view.
Does the hon. Gentleman agree that the duty of every elected Member of the House of Commons is to defend and protect the sovereignty of this Parliament?
I think that the duty of the elected House of Commons is not to try to hoodwink the public into believing-although the sovereignty and primacy of the House of Commons are self-evident-that the Bill will bolster our credentials, when that is clearly not the case.
Members who really want to change things, and to prevent the primacy of EU legislation, should try to amend the European Communities Act 1972. EU law is enacted by this Parliament, although anyone listening to some hon. Members today and some commentators outside might believe that it had no role in it whatsoever. The primacy of EU law over national law is clearly enshrined in the 1972 Act, which was passed by this Parliament. It can also be amended by this Parliament. I should be happy for those who obviously do not wish us to remain in Europe to table an amendment to that effect-that would be the proper thing for them to do-but clause 18 merely reiterates what is already there, as has already been pointed out by my hon. Friend the Member for Caerphilly.
As the European Scrutiny Committee in paragraph 82 of its report states,
"Clause 18 does not address the competing primacies of EU and national law."
The idea that passing the clause would somehow enshrine, or protect, the sovereignty of the House is complete and utter nonsense. Paragraph 82 continues:
"The evidence we received makes plain that these two spheres of law coexist, usually peacefully, clashing occasionally. When they do clash, neither side gives way. The Court of Justice of the EU maintains that EU law has primacy over national law, including national constitutional law."
That is clear from the ruling in the case of Thoburn v. Sunderland City Council.
I find it disturbing that some Members appear to believe that the courts have no role in the interpretation of law. As one of my hon. Friends observed earlier, the laws that we pass in relation to Europe are interpreted over time, and that is the role of the courts. It would be completely wrong for Parliament to interfere directly in the interpretation of a law once it had been passed. European law is no different from other laws in the sense that there are various possible interpretations of it. The Thoburn case made it clear that European law could not direct what the House of Commons could do in terms of making its own laws.
Like my hon. Friend Chris Bryant, who is no longer in the Chamber, my hon. Friend has made a point about lawyers' interpreting law and having scope to do so within statute. Parliament does not deliberately leave scope for lawyers to interpret the law-it tries to make its legislation fairly precise-but sometimes it is not precise enough, and at that point the lawyers intervene to interpret it. Parliament does not deliberately make laws open-ended so that lawyers can have a field day.
No, but it has been suggested that the courts should have no role in the passing of laws, and I simply do not agree with that, although I accept what my hon. Friend has said.
There is a danger that amendment 41, and indeed new clause 1, will enable lawyers to interpret the meaning of "sovereignty", and that the clearly defined roles and sovereignty of the House of Commons will be interpreted by judges, which would be wrong. Clause 18 has been tabled purely for political reasons, to placate people such as the hon. Members for Wellingborough (Mr Bone) and for Harwich and North Essex (Mr Jenkin), but I doubt that it will placate them in any way, and I believe that it poses a grave danger
Well yes, but funnily enough we still see many cars parked outside this building.
The important point about the Thoburn v. Sunderland City Council case is that the council attempted to assert the primacy of EU law and EU legislative and judicial institutions but that was rejected, and that is the case law that is now in place. Therefore, although Eurosceptics in this House and commentators outside suggest that somehow these laws are coming from Europe and they are imposed on us and we have no control over them, that is not the case, so I do not see why we need this point to be reinforced through clause 18. To be fair to the European Scrutiny Committee, it makes the good point that the Thoburn case sets out the law as it is currently interpreted.
I understand the hon. Gentleman's argument, but does he not agree that the European Court of Justice has been saying for decades that it believes it has been creating a new legal order-I cite the Van Gend en Loos judgment of 1963-and we entered into that through the European Communities Act 1972? Therefore, we have already impinged to some degree on our parliamentary sovereignty.
The hon. Gentleman needs to realise that it was this House that passed the 1972 Act that took us into that. If we want to amend it, we can do so by treaty. We could also have said at the time that we were not going to accept certain parts of the treaty negotiations. However, it is not the case that some far-off distant land is imposing things on this country. I know Conservative Members do not like the 1972 Act, but at least it was this Parliament that passed it. That is the important point.
This topic was covered by the European Scrutiny Committee, which says:
or "amending them".
I am slightly foxed. Does not sovereignty mean that if we do not like it, we do not do it, and if we cannot do it and we do not like it, we can change it? Is that not implied by the 1972 Act that was passed by this Parliament? Therefore, if we do not want to do it, this House is sovereign and will not do it. Is that not what we are talking about?
There is a mechanism by which the House can do that. That mechanism is to amend the 1972 Act or the subsequent treaties. I know it might disappoint the hon. Gentleman to hear this-although perhaps his local association is one of the most pro-European-but we must explain to people how the system through which European law becomes national law in this country actually works. It is not the case that it arrives in an envelope on the Prime Minister's desk one week, and then it is just adopted. Different countries interpret and combine European legislation and laws into their national legislation in different ways, and in the past our country has been accused of gold-plating certain regulations and other measures.
It is not the case that sovereignty is endangered by Europe. There are powers open to us to change the treaties or Acts if we wish to do so. It is strange that there is a later clause in this Bill on referendums. Strangely, it will bind future Governments and Parliaments to referendums on a range of issues. That is trying to look too far into the future, and many people might object to such a future referendum.
On the hon. Gentleman's point about the clause on referendums and looking too far into the future, does he not agree that that measure is in place because we are in fact looking into the past as the last Government refused the people the referendum that they had promised?
I do not want to go down that route, but I think that point has already been dealt with very well. We did not do what we are being accused of having done. [Interruption.] I do sometimes worry about some Conservative Members, as they must have to lie down in a darkened room and take sedatives after having got themselves so frothed up and excitable about the Lisbon treaty somehow being the end of the world as we know it. Unfortunately for them, the end of the world has not happened because of the implementation of the Lisbon treaty.
For the sake of some of our new distinguished colleagues, it might be worth while if we remind ourselves that a promise was made on a referendum on the constitutional treaty, but that was killed by the French and the Dutch. Dr Fox, who is now Secretary of State for Defence, said at the Dispatch Box that he was a doctor and he knew death when he saw it. That constitution treaty is dead, and we cannot have a referendum on a dead parrot.
I am sure, however, that some Conservative Members would have such a referendum if they could-although I would not like to challenge some of them to do that. [Interruption.] No, I do not want to go down that route.
Order. I hold to the strong belief that if I wait long enough we shall return to clause 18.
My mind has been set off with thoughts of my right hon. Friend Mr MacShane doing various things with dead parrots, but I shall try to resist any temptation to go down that route.
"Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated. We are gravely concerned that for political reasons it has been portrayed by the Government as a sovereignty clause in correspondence and also in the Explanatory Notes".
I would be concerned if, because of what has been said tonight, the explanatory notes are amended during the Bill's passage, because that might mean we do not have proper explanatory notes, and it might have an impact on our being able to scrutinise the Bill thoroughly.
The Committee also states that the Foreign Secretary was so confident of this clause that he would not appear before the Committee. I think that is wrong. To ensure that the Executive are properly scrutinised, Cabinet Ministers should appear before any Select Committee or inquiry that invites them to do so, and I cannot understand why he chose not to do so on this occasion.
I agree with my hon. Friend that clause 18 is a smokescreen to stop the real debate taking place both in this House and the country. Does he agree that we will not establish a real position to the satisfaction of the electorate until we either allow the electorate to have a referendum on some of the big issues to do with Europe and the European Union or one of the three main parties puts in their manifesto a genuinely more Eurosceptical position that is even more in line with the majority view in this country?
Yes, but interestingly, as my right hon. Friend the Member for Rotherham mentioned, the Conservatives failed to do that. Obviously, they were trying to decontaminate the Conservative brand and thought that one of the elements of doing so was not saying nasty things about Europe. I must make it clear to my hon. Friend that if any major constitutional changes in respect of Europe are made in future, referendums will be important. The hon. Member for Dover hinted that every so many years we should have a fundamental referendum on whether we are in or out of the European Community. That is completely wrong and does not help this country's standing in Europe. We have a settled position in Europe and it would be best if we moved on to dealing with what is important for people on Europe. As my hon. Friend said, that is about what Europe delivers for this country and issues associated with accountability and transparency, which need to be addressed.
Amendment 41 states:
"The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed."
If we are reaffirming this sovereignty, we are starting from the premise that it already exists. I am not sure, but the phrasing of the amendment may belie the fact that sovereignty is in no danger from Europe. The fudge in the Bill was included because of the coalition agreement or because once the Foreign Office lawyers got hold of the Conservative manifesto they realised that what was being promised in a sovereignty Bill was complete nonsense. It was obviously very useful for political purposes but was not needed or enforceable in terms of what is in place at the moment.
Is the hon. Gentleman asserting that when people reaffirm their marriage vows they are not actually married already?
The hon. Gentleman seems to have completely misunderstood the point that I was making. If someone is reaffirming something, be it marriage or, in this case, sovereignty, they recognise that it was there in the first place. So I cannot see the point of what he is trying to say.
Clearly, clause 18 has come about for political reasons. An honourable attempt is being made to get at least something out of the clause through the proposal for annual reporting. Amendment 52 states:
"The Secretary of State shall prepare an annual report on the extent to which in the previous 12 months the provisions of subsection (1) have been challenged or questioned in the courts, including the European Court of Justice, identifying any challenge to the declaration contained in that subsection that the status of EU law is dependent on the continuing statutory basis provided by the European Communities Act 1972."
That would at least ensure that we would be dealing with facts, rather than what we deal with on many occasions in the press and, increasingly, from Eurosceptic members of the Conservative party. They believe that if something is said enough times, people will believe it.
It seems that the hon. Gentleman missed long passages of the speech made by my hon. Friend Mr Cash. One of the reasons why he argued that there was a need for the words that the hon. Gentleman found mystifying was because of judicial activism. My hon. Friend's report, which the hon. Gentleman admired, cites Lord Hope and his comment:
"Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute...Step by step, gradually but surely, the English principle of the absolute...sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified."
The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. Therefore, this is not just declaratory; it is a response to what is happening.
I had moved on to dealing with a new point, but I am willing to go back. I am glad that the hon. Gentleman raised that point, because I can now mention a couple of issues in response. First, any law passed in this country will be interpreted by the courts. If they do something that we do not agree with, this House has the power to change it. The danger with including the sovereignty argument in clause 18 is that courts would then have debates about sovereignty, and that would be strange. How would this House then be able to change the law or interpret a court's interpretation of sovereignty?
I believe that what Lord Hope is saying is that this House could pass an Act that was not, in itself, lawful. What amendment 41 would achieve is a reassertion of the fact that this House could not do anything of the kind and that any act of this House is superior to any judgment of any court. If these arrangements are based on the rule of law, rather than the supremacy of Parliament, the judges could always overrule Parliament, and that is extraordinarily dangerous.
Judges often do overrule Parliament on the interpretation of the law. The danger of going down the line that the hon. Gentleman is suggesting is that we might be saying that when we pass a law it could never be challenged or changed. Would we be saying that every law passed in this Parliament is perfect and will never be in need of amendment or interpretation? As has been said, the entire case law of this country and the way in which we have developed laws in this country has resulted from people challenging laws, including in terms of European legislation. The Thoburn v. Sunderland City Council case clarified the position. I am not a lawyer, but I have employed many lawyers over the years at great expense and so I know that they will argue different ways around things. Sometimes they will do so to make a point, but on other occasions they will do so to get their fees up. On laws such as this or on health and safety legislation, which was the area that I was involved in, case law precedents always develop. In the cases I was involved in, that went on to bring justice to many people who had been involved in the asbestos industry. The important question is: do we really want judges to start giving interpretations of sovereignty? That is the danger in what the hon. Member for Stone is proposing in his amendment.
May I return to what I was discussing before I was interrupted by Mr Shepherd? I am always pleased to take interventions from him because, as he knows, I am a great fan. Amendment 52 would be useful, not only for the debate, but as a safeguard. If we were in a situation where we thought that European law was somehow infringing on not only the rights and liberties of our citizens, but the activities of this House, it would be important. This is not an ideal situation. The Government are always talking about unnecessary legislation and it is possible that this entire Bill is just that. Clause 18 certainly is unnecessary because it simply declares what is already the case. That is an important point. There is an idea that the Government have dressed this up and that they are going to make some great fundamental change or are going to protect against any changes in European law, but that is not the case at all. It is also important to make it clear that future Parliaments will interpret European law and will disagree with what is being put forward in this Bill. We cannot allow this Parliament to leave future Parliaments hamstrung in relation to freedoms.
In conclusion, clause 18 was introduced as a political fudge and I doubt whether it will placate the red-blooded, anti-Europe sceptics on the Tory Back Benches. Neither will it placate the commentators in the press who want us to withdraw from Europe. The clear option is to amend the 1972 Act, which would be more honest. This has exposed the Prime Minister not only in that the detoxification of the Conservative brand clearly has not taken place but because, judging by tonight's attendance, it has put him on a collision course with large sections of his own Back Benchers. As this Parliament goes on, we will increasingly see the true nature of the new Conservative intake.
My hon. Friend Andrew Bridgen mentioned marriage. That was a good point because renewing one's marriage vows does not make one's marriage any stronger. That is what we should talk about. It is what one does with and in one's marriage that matters, and the same applies to this sovereignty issue. Renewing our commitment to sovereignty will not mean that we are more sovereign. That is the thrust of my speech.
At least when people renew their marriage vows, they might have a party or celebration afterwards, but the measure would simply reiterate something that already exists, so there would be no party or feel-good factor afterwards. There might be a feel-good factor to some in the Conservative party, but that is about it.
We in the Conservative party are always celebrating, especially with our coalition partners, the success of our Government, so we have lots to celebrate. The hon. Gentleman is right about the renewal of marriage vows being a cause for celebration, but I am not entirely sure that we will be drinking champagne when we have defeated this amendment and passed the Act.
The point is that if something exists, we do not need to keep reaffirming it. Funnily enough, Mr Jones was absolutely right about the wording of the amendment: if one reaffirms something, one effectively admits that it is already there. Something I have noticed during the past three and half hours I have spent in this debate, except for the brief moment when I had a drink, is that clause 18, as drafted, is required because there is so much misunderstanding about what sovereignty is and what power Parliament has. When my right hon. Friend Mr Redwood spoke, we deviated into the 1600s in connection with the outcome and causes of the English civil war, but the real issue there was the relationship between the King and Parliament. We must remember that the monarchy is still part of Parliament, because an Act does not become an Act until it has received Royal Assent.
Another, much more interesting, dimension of this discussion is the transfer from kingdom to nation state. That has rather more to do with sovereignty than our involvement in the European Union. Suppose that we wanted to leave the European Union-we would simply repeal the European Communities Act 1972. We are not going to do that, but that is what we would have to do. But what if Essex wanted to leave England? How would that unfold? That would be a completely different situation and would bite at the issue of sovereignty. It is important to get right this issue of what sovereignty is. The shadow Minister started to speak about that and the very fact that we are debating it proves that we should not use the word sovereignty in the Bill because it will lead to a need for interpretation.
It is also important that instead of talking about sovereignty, as we have for the past three hours, we ought to discuss what Parliament should be doing to make a difference in the European Union, if that is what we really want. My right hon. Friend the Member for Wokingham did not really answer the question he was asked about the common fisheries policy. The matter is very simple: if we did not want to be in the CFP, we would have to say so and pass appropriate legislation having made the necessary agreement with our European partners. If we wanted to do that, it would no doubt be messy and would certainly be complicated, but it would not be prevented by our no longer being sovereign because we are. Parliament has the power to take the decisions necessary to bring about such an outcome.
It is important to focus on what Parliament does rather than on what we think it is. That is the difference. This discussion is about sovereignty, but we have to move away from that specific issue and focus instead on the power and role of Parliament and the way it can influence things. At the end of the day, if we decided to leave the European Union, we would have to repeal the 1972 Act, which some people might want to do. Others might want to reform or restructure it in some way-we have heard from my hon. Friend Charlie Elphicke that that would, to some extent, be his direction of travel-but the most important thing for us to do is define the national interest and pursue it relentlessly. My hon. Friend Mr Cash talked about the national interest and Disraeli's description of the Conservative party as always being the national party. That is what we have to do, and that is what the Conservative party, with our Liberal Democrat partners, will continue to do-try to shape a role for Britain that is constructive but without allowing the European Union to be too intrusive on how we proceed. That is the best way that we can act as a Government.
I am pleased to follow Neil Carmichael who, in his short and effective speech, demolished some of the more windy and high-blown rhetoric that we have heard tonight. Sovereignty is a wonderful topic for a seminar but is rather more difficult to define than one might imagine. In many continental legislations, the people are sovereign. The American constitution starts: "We the People". In such a system, it is not the Parliament or Congress that is sovereign but the people, who grant to the President or Parliament the right to govern in their name. In other countries, there are checks and balances known as a constitution or as direct democracy through forms of plebiscite and referendum. We have never gone down that path and have always refused a written constitution. In his book, "The English Constitution", Bagehot contrasted the flexibility that the lack of a written constitution affords Britain with the American constitution, which he said was so rigid that it could be broken only through the civil war that was taking place as he was writing or compiling his book.
The additions that Mr Cash and his colleagues on both sides of the House propose to clause 18 are superfluous because they will not add one extra bit of strength to the Bill. The Bill is cynical and worthless. The Government-or at least the Conservative part of the Government-may have campaigned in opposition as Eurosceptics but they have found that they have to govern as Eurorealists. I congratulate the Minister and the Government on being very Eurorealist since the coalition was formed in May. They have accepted a number of measures that require Britain to pay money or accept collective decisions, and have shown no desire to oppose the proposed changes in the Lisbon treaty to effect greater economic governance in Europe that were decided collectively by all 27 member states. They hide behind the convenient and comforting myth that that only affects the eurozone but, precisely to ensure better and more effective governance, much of which will involve a degree of fiscal discipline, we are gradually moving in the direction of greater co-ordination of our economic and fiscal policies in Europe. It will not be a case of giving orders or dictating tax levels-some countries might want to put up VAT, some might want to put up income tax, some might want to put up corporation, petrol, environmental, housing tax or whatever, and that will remain their individual decision-but much greater co-ordination is coming fast down the tracks. We live in such an open trading economy that if we want the European Union to remain open to all of our products, services, people and capital, we will require greater co-ordination.
The Bill discusses holding referendums if there are treaty changes that the Government do not like, but that is a contradiction, because no Government are going to sign a new treaty, then bring it back to the country for a referendum. Government's responsibility is to negotiate the best deal on a treaty that they can achieve for the country. That is the whole point about the EU-it is an association of nations bound together by a common treaty, and the amendments cannot change that substantial fact. In many areas of national life, the treaty that binds us together in the World Trade Organisation is far more powerful. It can dictate what British goods can be exported, or what Britain has to accept in imports from other countries. That is what the WTO exists to do. It was formerly called, if hon. Members remember, the general agreements on tariffs and trade, and it was a treaty. After 1945, Britain set it up, along with many other treaty-based organisations. There has been much generalised waffle about the common fisheries policy, but an equally important treaty that delineates our territorial waters is the law of the sea, which obliges countries to obey its provisions.
I am listening carefully to Mr MacShane, and if he is out of order, I will call him out of order.
I am grateful, Mr Evans.
We have heard a wide range of speeches, including one from Mr Redwood. We had a wonderful seminar on constitutional law from the hon. Member for Stone, and we are discussing something of profound importance: whether or not our country and this Parliament want to stay in the European Union on the common terms dictated by the treaty.
The hon. Gentleman will have a chance to speak later.
Is the right hon. Gentleman's rather rambling speech just a ploy to use up time so that his colleagues can get back from Oldham?
I would politely suggest to the hon. Gentleman that he wait until the early hours of Friday morning before he begins to smirk about Oldham.
I am a courteous, friendly fellow, Mr Evans, so I accept interventions even if they are points of order on the dark side of the moon.
I appreciate the right hon. Gentleman's courtesy in giving way. He is right that putting something into a Bill and stating that we reaffirm sovereignty may not in itself affect or change the law, but it sends a signal to the very people who effect our law, for example the UKRep or the Council of Ministers, and all those people who just go with the flow in Europe, instead of standing up for the needs of Britain, which are effectively written off. Saying it therefore sends a positive and powerful signal.
With respect, the hon. Gentleman is not being fair to our officials, who undertake the arduous task of negotiating the treaties or agreements that affect Britain. If he travelled widely on the continent as I do-and I am sure that he does, too-he would find that in capital after capital, people think that the EU is, if not a British plot, an Anglo-Saxon hymn to free trade. Again and again, in Berlin, Madrid and Paris, I have had to defend the EU and the European Court of Justice, because the vast majority of rulings in the ECJ uphold open and free trade, and slap down the protectionist instincts of many EU member states.
I thank the right hon. Gentleman for almost inviting me back. Having worked in Brussels and in France for two years on issues to do with European law and how it affects our kingdom, I found that people went with the flow unless backbone was put into the UKRep's office or into the Council of Ministers. We see it directly in fisheries policy, as fishermen in Northern Ireland, Wales and Scotland are prohibited from doing the job that they want to do-fishing our seas-week in, week out, because of bizarre regulations that flow from Europe.
As the hon. Gentleman spent time in France, he may have read in the French papers reports of blockade after blockade of French ports by French fishermen, outraged that the British interpretation in Brussels of the common fisheries policies prevented them from doing what they wanted to do. This is a collective decision that we have taken, and I suggest that Government Members are honest: if they do not like the European Union, they will not alter it one little bit by putting new forms of words into clause 18.
Our representatives in Brussels and in all the Ministries that negotiate every aspect of our relationship with the EU will not be impressed by the proposals. If hon. Members do not like it, they should pull out-that is the honest position to take. There is no magic form of words that can get us out of our obligations under this or any other treaty. If they do not want to be in any of the treaty-based organisations, all of which are part of international law and which can, if necessary be prayed in aid by our judges, they should say so. There is a completely separate problem concerning the erosion of parliamentary sovereignty in relation to our courts. We are writing into our unwritten constitution judicial power that exists in other countries. The Germans have a constitutional court, and its rulings guide and control part of Germany's relationship with the EU. We do not have such a court, but perhaps we should have. We all know full well the strength and power of the Supreme Court in the American constitution. We have never allowed that; we have wanted everything to happen here in Parliament and have not moved to a form of written constitution. We could put into one an obligation to have referendums on new treaties, as the Irish constitutional court has and the Danish constitution does. All those things are possible.
The Government could simply have said, "There will be a referendum on each new EU treaty-period." That would have been very powerful and given the sovereign people the right to decide what should or should not happen. It would have severely limited the chances of this or any future Government negotiating changes to a treaty that we judged to be in our interests.
It is no accident that any reference to a referendum on enlargement is excluded from the Bill, because the Government want Turkey to join the EU-and so do I. However, nobody in the House can possibly imagine that the question of whether 85 million Muslim ladies and gentlemen from Anatolia should have free access into this country would not receive a resounding "no" from the British people in a referendum.
So we go back to the clause, again and again. Nothing in the amendment strengthens the Government's hand or puts backbone into the UKRep spine-straight and sturdy though I am sure it is.
Time and again my right hon. Friend poses the alternative: "accept what we have, or get out of the European Union." Yet now we are talking about reform and change-perhaps even withdrawing from the common fisheries policy. I shall leave that there.
I want to reinforce the point made by Ian Paisley, who talked about officials. I suggest that the politicians, particularly the people at the Commission, pushed Britain to the brink. Recently, we came close to having a referendum that would certainly have produced a no vote. This signal that we are giving to the European Union will emphasise the point that Britain was pushed to the brink of a serious referendum, with a no vote being the certain outcome. This signal will make sure that they do not push us again.
There is this version of Britain contra mundum-the 26 member states all ganging up against us. We have allies and friends, and we win arguments. The European Union is seen around the world as a model for open trade. Lorries leave Portugal and arrive in Poland. A lorry cannot leave Mexico with its Corona beer and unload it in San Diego; it has to unload it on to protectionist lorries controlled by trade unions in the United States.
I put it gently to hon. Members that they should be careful before getting what they wish-the disaggregation of the European Union, with every country rejecting European Court of Justice decisions that they do not like. France believed that it was sovereign when it refused to accept a pound, or a kilo, of British beef, at the time when the whole world thought that the beef was contaminated. We could not export it to Australia, and Canada would not accept it. The Commonwealth would not have it. Hong Kong, our Crown colony, would not have it. But the European Union had to accept British beef because the European Court of Justice accepted our scientific arguments that the beef was fit for sale in the common European market.
Most of my speech has consisted of accepting interventions from right hon. and hon. Friends and colleagues. With your permission, Mr Evans, I shall now sit down. [Hon. Members: "Hurrah!"] I do not propose to put that to a referendum; it is my sovereign decision whether to stand or sit, but the amendments would not make one iota of difference to Britain's relationship with the EU. The Bill itself will also make very little difference, although that, as has been pointed out, may be a point for a later day. I sincerely put it to hon. Members who do not like the EU to have the courage of their convictions and start persuading their party to be as Eurosceptic in government as it was in opposition. But a party of U-turns will probably find that difficult to achieve.
Thank you for calling me to speak, sir; I call you "sir" because I am not sure whether I should call you Mr Deputy Speaker or Mr Evans, given the seat that you are in at the moment.
It is interesting to follow Mr MacShane in a debate such as this. I was a Member of the European Parliament, which is arranged in such a way that the lights get brighter if the debate gets exciting and dimmer if the life goes out of the debate. If we had such a system in the House now, I fear that I would be speaking in complete darkness.
It would be easy to answer a number of the points made by the right hon. Gentleman, but I agree with what he said at the very beginning of his speech. I have tabled a bunch of amendments to the Bill, which deserves tightening up, although there is something in it worth salvaging. However, I looked at clause 18 and thought that it did not mean anything, so it was not worth tabling an amendment to it. It is a declaration.
Does clause 18 put the sovereignty of Parliament in relation to EU law beyond speculation? I do not think so. Does it affirm and confirm that EU law has legal standing in the UK only because Parliament wills it through Acts of Parliament? I am not convinced that it does. Equally, however, I am not convinced that the amendments tabled to clause 18 would add anything to it; they are not anything to get excited about. I do not think that clause 18 is a very good clause, and I am pretty sure that it is not a sovereignty clause. If it has a place anywhere in the Bill, it should be in the preamble. It would be a good place to start-a sort of "This is where we came from".
I have been following this process through the European Scrutiny Committee, and I have been fascinated by the different sorts of opinion that we can get from academics. In my 10 years as a Member of the European Parliament it was always interesting to get at least three academics in the room to give advice, because people knew that they could then get three completely different opinions and choose the one that they wanted.
I like to call myself a pragmatic Eurosceptic; I am a great believer in dealing with what is on the table and what we can achieve. I would like to think that the Bill will be able to achieve some things when we come to later clauses and amendments, but I just cannot bring myself to get excited about clause 18. I wish that the Government had not called it the delivery of the pledge made in the Conservative party's election manifesto, because I simply do not believe that it is.
There are many voters across the country who are slightly sceptical about Europe. Mr Jones has left his seat, but many voters in his constituency will be sceptical about what goes on in the European Union. I do not think that they will feel comforted by the fact that clause 18 is in the Bill. If we vote for the amendment tabled by my hon. Friend Mr Cash, I do not think that they will wake up and think that that has achieved very much. Whether the clause stays as it is or the amendment is accepted, we will still be where we are: nothing will have changed.
I followed the process in the European Scrutiny Committee with great interest because some interesting and eminent people came before us. They often looked at the exciting parts of the Government's explanatory notes to the Bill, especially the statement:
"This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts."
I assume that that means the British courts, but because it is fairly vague I guess that it could equally mean the European courts. I have written to the Minister for Europe asking for clarification on a number of points about the Bill, but the explanatory notes already say:
"Clause 18 is a declaratory provision which confirms that directly applicable or directly effective EU law only takes effect in the UK as a result of the existence of an Act of Parliament."
I think that the whole House can concur with that point. The principle of parliamentary sovereignty is that Parliament is free to make or unmake-that is a terrible phrase, but it means to get rid of-any law if it wishes to do so, which will be upheld by the courts. That has been a keystone of the UK constitution for centuries. Nothing in the clause, or indeed in the amendment to the clause, would change that.
We must remember that the British people have a distinct lack of trust in what anybody says on this subject in this place. They do not trust Her Majesty's Opposition, because although the shadow Minister, Mr David, may say that the constitutional treaty was very different from the Lisbon treaty, the majority of the public are not fools and they understand that the words were basically the same; in fact, even the order in which they appeared was basically the same. The Lisbon treaty was pretty much the same thing, and we should have had a referendum. Even if the hon. Gentleman disagrees with that point, he must understand that people outside this place feel like that.
I am happy to concur with the people who say, "Let's be honest about this." I would like to repeal sections 2 and 3 of the European Communities Act 1972, and I would like to have a proper sovereignty Bill. However, that is not on offer. I am in a coalition Government and lots of compromises have had to be made, some of which I am deeply disappointed about, but all of which I understand, because we are here to sort out the economic mess that the other lot left us. I want to get on with doing that particular job. I cannot get myself excited about all this.
My hon. Friend is making remarks with which I must, unfortunately, disagree. In particular, I do not think that he has quite understood the nature of sovereignty. The United Kingdom Parliament is sovereign only in so far as it is not affected by decisions taken by the courts. Sovereignty is about the rule of law, which pivots between the courts on the one hand and Parliament on the other: we make and they interpret. When they get into the position of seeking, as they now are, through the common-law principle and their judicial assertions to erode sovereignty by specific words, they are invading our sovereignty. In amending and eliminating that, as I seek to do, we would revert back to the supremacy that we have always wanted and insisted on.
I thank my hon. Friend for his intervention. However, during my 10 years as a Member of the European Parliament I gained a rough idea of what sovereignty was and how it is viewed by different member states within the European Union. His amendment would have some strength if we had market-tested it on the academic experts who appeared before the European Scrutiny Committee. I truly believe that if we had said, "This is what clause 18 states. What do you think of that?" they would all have said what we have said about the clause, which has been repeated a number of times. If we had asked whether adding this sentence to the clause would protect us in any way, I am pretty sure they would have said, "No, not really. This is all a matter of interpretation for the lawyers. We won't get anywhere like that."
Is not the reason why people do not get excited about this sort of stuff-the hon. Gentleman has put his finger on it-the way in which laws are changed in this country? He is right: it is not a bang theory. As someone who has worked in Europe and been a Member of the European Parliament, he will know that Europe changes laws in a very nuanced way. A European directive informs our officials what they should do and our officials make those changes, sometimes at the behest of our own courts. However, such changes happen as a result of a nuanced change in Europe. They are dumbing us down quite deliberately, so that this Parliament is no longer sovereign.
I agree, which is why I focused my attempts to amend the Bill on the parts of it where there are opportunities to get this place to debate matters more thoroughly. We should get the country more interested by having referendums on some of the big changes that happen in Europe. In the Lisbon treaty there is an awful clause-the passerelle clause-which has untold danger written across it.
There are many things that former Ministers for Europe did; I am talking not about the right hon. Member for Rotherham, but about a friend of mine, Keith Vaz when he was Minister of Europe. The European charter of fundamental rights was meant to have no more relevance to British law than a copy of the "Beano," but it is now enshrined in the Lisbon treaty. I am very wary of the process and how it works, which is why I am keen on tightening up many other matters in the Bill, and have tabled amendments to do that.
None of those issues are helped, or indeed hindered, by clause 18. The Government's apparent intention is that the clause will combat any argument that parliamentary sovereignty is limited by EU treaties directly-in other words, that Parliament cannot act contrary to those treaties while they apply to the UK. A strict reading of clause 18 would not prevent someone from arguing that parliamentary sovereignty would be limited by the European Communities Act as applied by the courts. There are many different arguments on this matter, but I want to return to the simple fact that we can take from the expert witnesses' testimony before the European Scrutiny Committee anything we like, to allow us to argue on any side of the issue. Sensibly, Professor Adam Tomkins submitted in written evidence to us that
"European Union law is far from being the only contemporary challenge to the doctrine of parliamentary sovereignty".
That is a very salient point. Human rights law, and indeed common law itself, would also pose challenges, as would different types of law coming from different places through different courts. Those challenges will not be affected by what clause 18 states, and will not be changed or challenged by the amendment if it is passed. We will still be in the same position.
I am concerned because I have a strong belief that we will not be able to negotiate strongly with our European partners until we start banging our fists on the table, reminding them that we are the second largest net contributors to the European Union and using the vetoes that we have. We should do exactly what the French and the Spanish do in all budgetary and other negotiations, which is to play their hand as hard as they can for the best interests of their country. That is what I would like our Ministers to do, and what I would like to believe they are doing. I want to hear from our Ministers that we will not only talk and be good at the rhetoric, but that we will start instructing United Kingdom Permanent Representation to the European Union to do the right thing by our people. Again, none of that is affected by clause 18 or the amendment tabled to it.
I humbly suggest to my colleagues who may be excited by the clause that perhaps this is not the battle we should be fighting. There may be other areas where we can give the people we represent the referendum they want, and we should be angling for that. Perhaps there are ways in which we can tighten up the Bill through other amendments to other clauses. The timing of the implementation of the Bill means that it will apply to decisions made by the Government in the future. Perhaps we can do a much better job by tightening up the rest of the Bill, rather than getting excited about this clause.
Maybe at some point in this Parliament we can have a referendum on Europe, which is something on which I have not had the opportunity to express my view. I would love an "in or out" referendum; hon. Members can guess which way I would vote in that. Based on where we are now and what we have, it would certainly be "out". I want the British people to have their say on our relationship with Europe and I also want them to be engaged in what is going on in their name in this place and in the negotiations. Other parts of the Bill, rather than this clause, are the place to try to bring that about.
Several Members on both sides of the Committee have referred to England, the English Parliament and Britain. Let me gently remind the House that our nation state is the United Kingdom, and it is much more pertinent, particularly when discussing the issue of sovereignty, to get its name right.
My right hon. Friend Mr MacShane, who is an ardent and sincere pro-European and was a very good Minister for Europe, told the Committee that neither he nor the present Government would support giving the people of the United Kingdom a referendum on Turkey's entry into the European Union because, in effect, we know that the outcome would be a no vote. I suggest to him, and to those on the Treasury Bench, that it is difficult for the people of our country to have great faith in the European idea if the Government of the day are simply going to say, "We know you won't agree with what we have decided, so we are not going to give you an opportunity to have your say." That is the type of challenge that we have faced over the past 25 to 30 years. I am probably, by the standards of my party, a Eurosceptic, but I do not believe, as was so well articulated by my right hon. Friend the Member for Rotherham and others, that our interests would be served by coming out of Europe, which is our largest trading partner. Whatever the flaws of the European Union-and there are many-the idea that we could have the same trading relationship with the other 26 nations if we were not part of a single bloc is ludicrous.
Several Members referred to the history of sovereignty. As the loyalists on the Government Benches traipse through the No Lobby later on, they might wish to take a moment or two, in between being given a pat on the back by their Whips for having been so loyal to their principles-I am sorry, their careers-to look at the exhibition on the wall outside to my left, which gives an account of the dispute between James I of England, who was also James VI of Scotland, and Parliament in 1621. I am sure, Mr Evans, that as a good parliamentarian you know that King James was very much in favour of close ties with the Spanish king and Parliament did not share his pro-European views. When Parliament protested to the King about his pro-European policies, he had the Journal of the House torn up because he would not accept Parliament's comments. In a letter back to Parliament, he said that the House need not
"meddle...with any thing concerning our government or deep matters of state".
It is disappointing that 380-odd years later, those on the Treasury Bench have adopted the same, very regal position towards this House.
I listened carefully to the hon. Members for Daventry (Chris Heaton-Harris) and for Dover (Charlie Elphicke), who seem to be the main advocates for clause 18, although they accept that it is a tokenistic gesture designed to mollify their Eurosceptic colleagues. However, having listened attentively to Mr Cash, among others, I do not think that that gesture has worked. The hon. Member for Dover said that clause 18 probably does no harm. I am slightly surprised about that, because Labour Members are often lectured by Conservative Members about the need for less regulation, legislation and bureaucracy. It is setting the bar very low to argue for a clause on the basis that it does no harm. That is a slightly absurd position for any party, particularly one that is calling for less legislation. I am afraid that I cannot possibly support clause 18 if the best argument that can be put forward is that it does not do much of anything.
My hon. Friend the shadow Minister and my hon. Friend Mr Jones asked what the Government's motivations were in moving from a sovereignty Bill to a sovereignty clause. My hon. Friend the Member for North Durham suggested that it is the result of a coalition deal in which the Deputy Prime Minister, Tim Farron and others forced the Minister of State, Foreign and Commonwealth Office, Mr Browne, to give up his long-held principles on the issue of sovereignty. Let me suggest to Government Members that the Notting Hill set, or the Cameroonians as they are fondly called by some, did not particularly support this in the first place, that it might be worth reflecting on whether it is unfair to blame the hon. Member for Westmorland and Lonsdale for having diluted the sovereignty Bill down to a clause, and that perhaps the Prime Minister and the Chancellor, who are really quite pro-European, as much as they may deny it, were also involved. I am disappointed that the Foreign Office Minister was unable to join us at any point this evening, as I understand that he told The Daily Telegraph some very interesting things about his views on the coalition and about how he and the Foreign Secretary have been getting on. Perhaps the Minister who winds up the debate can update us on how diplomatic relations are going in the Foreign Office at the moment.
In conclusion, will the Minister outline why the Government feel that clause 18 is so important and explain the impact of its deletion on the Bill overall and on the UK's relationship with the European Union?
Like several colleagues who have already spoken, I was a member of the European Scrutiny Committee that considered this Bill. I think that the Committee performed a very useful exercise, and I am very grateful to all the esteemed academics who came along to give evidence
Thomas Docherty was not entirely fair to the Government in his comments. I think that my right hon. and hon. Friends were absolutely right to ask the question, "Is there a need to entrench parliamentary sovereignty?" and to identify the threats to parliamentary sovereignty, which probably intensified during the period of the previous Government-threats coming not only from the European Union but from judicial activism and the role that judges have assumed for themselves in some aspects of our country's governance. Ministers need to ask themselves whether the clause, as it stands, satisfactorily meets the objectives of entrenching parliamentary sovereignty that they set themselves. Having taken part in the proceedings of the Committee, I am afraid that I have reached the conclusion that it does not.
My hon. Friend Chris Heaton-Harris, who spoke very well, was good enough to refer to the various academics who came before the Committee. I am used to hearing from experts and academics evidence that is so wildly at variance that one cannot see how they could be experts in the same subject, let alone come to the same conclusion. However, the weight of the evidence from the experts to the Committee was almost unanimous; in fact, it was unanimous about clause 18. In their opinion, the clause did not meet the objectives that the Government had set for it. One or two of them went even further and said that because of its being restricted to the European Union in its declaration of sovereignty, it could possibly damage this House and parliamentary sovereignty as regards whether parliamentary sovereignty was part of common law and could be dealt with as such by judges. The evidence that we heard was conclusive that the clause does not meet the objectives.
Professor Tomkins from Glasgow university has been referred to, and I can do no better than to quote his conclusion:
"For all of these reasons, clause 18 as presently drafted may be seen as an opportunity missed. Parliamentary sovereignty is under considerable challenge from multiple sources. For those who seek its robust defence and protection, clause 18 falls substantially short of the mark."
Professor Craig from Oxford university, another distinguished academic with a different perspective, came to the same conclusion. He could identify only two occasions on which the clause could be relevant. One of those concerned what would happen in the interim if this country were ever to leave the European Union, and what the status of European Union law as opposed to British law would be in such circumstances.
I very much agree with my hon. Friend's speech. Does he agree that the expert witnesses were all agreed on the judicial trend, except that the common law radicals among them wanted it, whereas the others-Tomkins and Goldsworthy-most emphatically did not? It was our judgment that the last two were right and that the common law principle people were wrong.
My hon. Friend is right, as were those experts. As a House, we are right to address this matter, and Ministers are right to address it.
It was interesting that earlier in the debate, Mr Jones-a Labour Member-seemed to put forward at some length the view that we should defend the judges and not the will of the people, as expressed through this House. That was an interesting proposition to hear from the Labour party, and seems at odds with its history. The conclusion that I have come to is that the clause does not accomplish the objectives that the Government set themselves. The question is how we can meet those objectives.
The amendments are not mine, although I would be happy to put my name to them. They were drafted after we received the evidence from the experts, and as a Select Committee member I believe that they are entirely consistent with what the experts told us. Other hon. Members might say more about that. The amendments would better meet the threat that was identified by the experts, for all the reasons that my hon. Friend Mr Cash set out in his considered speech.
I think that the hon. Gentleman is about to refer in detail to the amendments. Before he does so, will he tell us what the point was of the Government putting forward clause 18 in the first place if it does not meet their objectives, or his?
The hon. Gentleman would do as well to ask what is the point of his amendment. The gist of his speech was that the clause will achieve nothing and we are going to have a report on it every year saying how it has achieved nothing. This is not a party political speech, but I think that the Labour party could have produced something a bit better than amendment 52, which is just a marking-time amendment that gave the hon. Gentleman the opportunity to make a few random points, but does not deal with the problems that we face. To be fair to Ministers, they have tried to face those problems.
The clause does not sufficiently address the situation because it is a restatement of the existing position, under which the present challenges to parliamentary sovereignty have developed, as has been said. It does not go much further than what people were told before the referendum on the European Union in 1975, to which hon. Members have referred. Interestingly, the Labour party said that it would never have a referendum and yet it was the Labour party that put the issue to the people after the negotiations had taken place and after the country had joined. The people decided to stay in the European Union. I am sad to say that I am old enough to have taken part in that referendum, which probably makes me past it, as the BBC would say.
To come back to my point, what the Bill says is not very different from what the British people were told in the literature sent to them by the Government of the day before that referendum. Fact No. 3 stated:
"The British Parliament in Westminster retains the final right to repeal the Act which took us into the Market on January 1, 1973. Thus our continued membership will depend on the continuing assent of Parliament."
I do not think that the clause does not go much further than that, but let us look at the changes since then. The other safeguards that were set before the British people included the following key fact:
"The Minister representing Britain can veto any proposal for a new law or a new tax if he considers it to be against British interests. Ministers from the other Governments have the same right to veto."
The many safeguards it was attempted to put in the provisions of the time, and subsequent other treaties, have turned out to be of little use.
We need a more robust assertion of parliamentary sovereignty and I hope that, when he responds to the debate, the Minister will give a considered response to the amendments tabled by my hon. Friend the Member for Stone. I cannot see what the great obstacle is to accepting those amendments if our objective is to entrench parliamentary sovereignty. Why is there such reluctance to accept them? They are not wrecking amendments to undermine the Bill, but are there to improve it and to provide a more robust assertion.
Does my hon. Friend mind my mentioning that, for reasons connected with the European Communities Act 1972, the Merchant Shipping Act 1988 was struck down by the courts because they said it was not sufficiently within the framework of European law? With the current judicial trends, that is the kind of situation that we can envisage on an array of matters contained in the status clause. Even if we disagree with a piece of European legislation, our legislation can be struck down if it is inconsistent with it.
My hon. Friend is right to point out that judicial activism is a living organism. That activism is not only in the courts of this country but in the European Court of Justice, which has a free-ranging way of interpreting European law. We must beware of its activities and the precedents it might set in interpreting any piece of EU legislation to which we give assent.
I draw the Committee's attention to the excellent speech of my right hon. Friend Mr Redwood, who talked of the distinction between sovereignty and the exercise of power, and whether the exercise of power can grow to such an extent that sovereignty becomes a piece of fiction and withers on the vine. He drew an interesting parallel with the erosion of the sovereignty of the Crown, through the continued exercise of sovereignty by Parliament. We must ask the same questions about the European Union, irrespective of the clause, because the power that we voluntarily concede to the European Union in so many areas will, over time, inevitably erode parliamentary sovereignty, however robust our reaffirmation.
My hon. Friend makes a powerful argument. As we have heard a lot this evening, we have an evolving constitution in this country, and an evolving European Union. Is now not the time, as Ian Paisley said, to send a clear signal domestically and internationally to Europe, that this Parliament reaffirms its sovereignty?
The interesting point that was missed out by Mr MacShane in his contribution and by the Labour Government in their referendum literature, which tried to portray the European Union as simply a trade organisation akin to the World Trade Organisation, is that there is a commitment to an ever closer union. Attention was drawn to that at the time of the original referendum, but sufficient account was not taken of it. That commitment continues today. The European Commission has signed up to measures that promote ever closer union. Measures and proposals come before us all the time that transfer further power from this House to the European Union. There is no underground supply of new power that the House can create and hand out. Power is exercised either here or in the European Union, and over the years we have conceded more and more power to the EU, which must inevitably have an effect on sovereignty.
We need a reaffirmation of parliamentary sovereignty as far as the EU and other potential threats are concerned, but we also need Ministers who are prepared to stand up to the EU, say no and not make voluntary concessions. I am sorry to say that under the provisions of the treaty of Lisbon, we will see the creation of the European External Action Service, which can only result in more power and authority being drained away from our foreign policy and going over to the EU. The Union Jack is being hauled down throughout the world and the EU's flag run up in its place.
The EU and the European Parliament are champing at the bit to get their hands on our security policy, and the European Commission's second-top priority in its immediate programme is the creation of its area of freedom, security and justice. There is a constant stream of directives on the matter, and let us be clear that those directives are not about picking a measure here or there that will improve the standard of justice. The point of the European area of freedom, security and justice is to create a common European legal system, which is being put together piece by piece. We currently have an opt-out from that, and Ministers need to find the resolution to maintain that opt-out and refuse to opt in to any further such measures.
I have not mentioned the list of financial regulations and proposals for economic governance that we heard earlier, but it is very long. If we sign up to all those individual measures, they will result in a transfer of power that will have an effect on our sovereignty. We need an improved sovereignty clause in the Bill, to send a clear signal of what we are about, and we need Ministers who will stand up to the EU. I am sure that they will do that, but they need to find the determination to do so and we need to support them in finding it.
It is a great pleasure to follow my hon. Friend Mr Clappison, who made an absolutely outstanding speech. I should like to echo a great many things that he said, but brevity does not allow. I do, however, point out that the context of the debate is the fact that the current deluge of initiatives, the possible ending of opt-outs, the new legislation that is coming through and the expansion of the legal order do not require the expansion of competences. The competences for those things are already in place, so they will not trigger referendums.
My hon. Friend was right to emphasise a point that my right hon. Friend Mr Redwood made. We live with an unwritten constitution, and institutions have powers that are not written down anywhere. If those institutions do not use those powers, suddenly the lights will come on one morning and they will be gone. That is what we have found during our membership of the European Union. Although it seems unthinkable that that could happen to the sovereignty of Parliament itself, we have to recognise that possibility.
The European Scrutiny Committee's extraordinarily powerful report on clause 18, and the unanimity of the evidence given to the Committee, underline the threat to the sovereignty of this Parliament from the behaviour of our own Government. I would very much like to have welcomed the clause, but I cannot bring myself to do so. It simply does not deliver the reassurance, the finality and the end to ambiguity that we promised our voters at the last general election.
My hon. Friend asked about the nature of sovereignty and power. People tend to use those terms interchangeably, but power is the ability to produce intended effects and can be used legally or illegally, with or without authority. Authority is the legitimate use of power, and legal sovereignty is the ultimate source of authority. This House has had legal sovereignty, pretty well uncontested, for the past 300 years or so, and that lies at the heart of our unwritten constitution and the democratic control thereof, as my hon. Friend Mr Cash so ably explained.
My hon. Friend is making an excellent speech. Does he agree that when those principles were being established in the Bill of Rights in 1688 and 1689, the very reason why the courts were precluded from interfering in internal proceedings in Parliament under article 9 was precisely to deal with that question? It set out that the courts must not get involved in trying to make determinations about parliamentary sovereignty. That was exactly what it was all about.
Yes, and without wishing to digress, I point out that Lord Phillips, the current president of the Supreme Court, qualified article 9 of the Bill of Rights in a recent judgment by suggesting that the doctrine of implied repeal applies to it. The Supreme Court is questioning the Bill of Rights itself, and if we are not aware of how parliamentary sovereignty is now being questioned, we are not living in the real world.
I listened to Mr David say that the clause merely reaffirmed the status quo, but the status quo is not a static situation. It is constantly fluid, and the rather lame attempt in the clause to address the situation is causing great concern.
I could not resist coming into the Chamber when I saw the hon. Gentleman's name on the board. Could he explain to me how the status quo has changed since 1972, when Parliament basically took the decision to give primacy to EU law?
What has changed is the nature of the legal order in the EU and the UK's relationship with that legal order. If it had been explained to Parliament in 1971, when the European Communities Bill was progressing through the House, that in future a UK court would be able to strike down an Act of Parliament in the name of the European Union, there would never have been any possibility that we would have joined. The development of the European legal order, with the huge number and range of powers that have been passed over from the UK to the EU, means that I fail to see what competences the EU does not now possess that it could ever possibly need in order to become a fully fledged state. If the hon. Gentleman does not recognise that the situation is fluid, I think he is living on another planet. He had better listen to the rest of my speech.
We know where sovereignty lies in the British constitution-here in Parliament. Under a written constitution, it does not necessarily lie with the people, although the authority to exercise it might lie with the people. I would argue that the authority of Parliament's sovereignty also rests with the people. Under the American constitution, sovereignty is dispersed among various institutions but ultimately rests with the judges. If we moved towards a written constitution, we would overturn the democratic constitutional settlement that we have enjoyed in this country and that has given us such flexibility and agility for 300 years. We would lock ourselves into a judicial system, which was fundamentally undemocratic because it would be ruled by judges, not the British people.
Having lived in the United States, I absolutely share my hon. Friend's concern about judges' encroachment on parliamentary sovereignty. However, in the context of the Bill, is not he in danger of making the perfect the enemy of the good? Is not clause 18 a great first step towards limiting the abrogation of the sovereignty of this Parliament by the EU? By outlining a perfect situation, is not my hon. Friend in danger of making the enemy clause 18, which is surely a step in the right direction?
I fully accept that my right hon. and hon. Friends on the Front Bench have attempted to take a step in the right direction. However, by the advice that they have accepted and their framing of the clause, they have not achieved the objective or made any progress, and they may have set us back. To put it bluntly, if clause 18 is all that Parliament has to say about its sovereignty, that is an invitation for the judges to come for us, as I shall explain.
Although sovereignty in the German written constitution lies in German basic law, Germany has the advantage of a constitutional court, which has always reasserted its right to determine whether European Community law is compatible with German basic law. Some of us have asked for some years why we do not have the same constitutional protection. We do not, and a sovereignty Act or clause was therefore deemed to be necessary. That is how some of us persuaded the leader of the Conservative party to make that an important part of his leadership election.
Where does sovereignty lie in the EU? Obviously, the origins lie in the member states, but over the years and from early on, the European Court of Justice began to lay claim to sovereignty. Back in 1963, in the Van Gend en Loos case, the European Court of Justice laid claim to a new legal order, whereby member states had subjugated certain delegated powers to the collective good, over which the European Union would claim supremacy. The doctrine was developed in the Factortame case, in which a UK court, with an obligation to implement European Community law, finished up overturning an Act of Parliament. At the time, one had to pinch oneself. Before that date, one could not imagine that one of our domestic courts could do such a thing, but it did.
Does my hon. Friend also agree that, in the context of Van Gend en Loos, Costa and all the other cases that declaration 17, which is attached to the Lisbon treaty, covers, there is no attempt, in declaring the primacy of European law, to define the word "primacy"? Similarly, there is no need to define parliamentary sovereignty. My answer to the Government's point on that issue is, "Tosh".
I will revert to that later. The great danger of the European constitution was that it was explicitly and legally autochthonous. It derived its authority from itself and its own roots. At least the Lisbon treaty reverted to the principle that authority comes from the member states, but it contains the important and dangerous declaration about not only the primacy of EU law, but the EU's constitutional supremacy over the constitutions of member states. That means our Parliament. I therefore fail to understand how anyone can say that there is no threat from the EU to the sovereignty of this House. That lot over there signed a treaty, without a referendum, that created such a threat. That has given rise to a demand for clarification about the sovereignty of Parliament in some form.
Many of my colleagues-I have talked to them in the Lobbies as well as hearing one or two speaking today-think that clause 18 is not the fight to have. If I may paraphrase my hon. Friend Chris Heaton-Harris, he said that other clauses were much more important. It is not an either/or. It is suggested that somehow a referendum would be a panacea. People seem to think that as soon as we have a referendum-preferably an in or out referendum-we will be able to settle the issue.
The truth is that we may one day quite soon have a referendum on the European Union. It might be on the question of an additional treaty or power, and it might turn into a referendum on in or out. But the actual fact of a referendum will not solve anything. Instead, it will throw into flux the question of our membership of the EU, and the Government of the day will have to decide how to use that referendum to negotiate a new relationship with the EU. We will not stop the trains running through the tunnels and cancel all the flights and the trading. We will still have to have a relationship with the European Union.
Suppose that we wanted to take back control over our trade and to exit the customs union. We would need to have a renegotiation, sector by sector, of every part of the British economy's trading relationship with the EU. The point about a customs union is that there are no barriers-it is a single trading area. If we were to elect to have a separate trading area-to leave the single market-but we wanted to continue to trade with that market, we would need a trade agreement, so we would need to negotiate one. Immediately, we would need renegotiation.
We constantly hear it said, "Oh, if you Eurosceptics want to leave the European Union, why not be completely honest about it?" The pro-Euros-the people who are dedicated to the annihilation of the sovereignty and independence of this country-always put the issue as a binary question and, to an extent, they are right. It would be a self-fulfilling prophecy-a referendum would become a matter of leave or stay. If we are not sovereign in this Parliament while this country is a member of the EU, the only option is to jettison all the treaties and Acts, so we have very little flexibility.
What we as a Parliament need, in those circumstances, is the ability to negotiate partially, to pick and choose from a menu of options. But that would require Ministers to be able to legislate to suspend this EU instrument or that EU instrument. For example, they would need to be able to suspend EU City regulation so that we can get our competitiveness back. The Prime Minister's remarks on Monday, about his pro-jobs agenda and a flexible labour market, are another example. The coalition also says that it wants to renegotiate the working time directive to recreate the competitiveness of the British labour market. So Ministers would need the option of passing an Act of Parliament to suspend the application of certain EU instruments, but the question is whether that option will be available to them.
A little earlier, the beef ban was mentioned. I was a humble Parliamentary Private Secretary in the Scottish Office at the time, and we had a lot of discussion about how it could possibly be legal for the EU not just to ban the import of beef into other member states, but to ban the export of British beef from the UK to third-party countries. We were banned from exporting to anywhere, and there was some discussion about whether we could suspend the effect of that legal instrument to stop the EU preventing us from exporting our beef to other countries. The advice was, "Oh no, Minister. You can't do that because it would put us in breach of the European treaties, infraction proceedings will be taken against us in the European Court of Justice and we will be found to have broken the law. Minister, I must advise you not to break the law, as otherwise you will be personally liable." Do Members get the point? Ministers have to obey the law and accept legal advice. Unless we sort out the sovereignty of Parliament and make it explicit that Parliament can suspend European Community law in selected circumstances, Ministers will not be in a position to exercise the freedom that Parliament has given them.
Did the hon. Gentleman seek alternative legal advice, which is often the sensible thing when getting that sort of advice in government, as I know from experience?
We sought alternative legal advice and were assured that, in all probability, the domestic British courts would uphold Parliament's sovereignty and ability to suspend those legal enactments. But that is the point. We might have it now, but will we have it in the future?
Is the hon. Gentleman not willing to tell the full tale? The power given to the Commission under European Union law allowed it to stop France banning the import of our beef when it was cleared of infection. Is it not useful to have a common law that everyone agrees can be enforced in the other 26 countries? Without that, we might not be selling beef to Europe to this day.
I fully accept that there is an argument and a balance of interests to be struck. The hon. Gentleman is arguing that it is always in our interests to accept a European Community legal order, but I am suggesting, quite reasonably, that it might not be. There might come a time when it is not in our interest to accept a European legal decision. Sadly, Governments tend to be driven by such a fear of confrontation with the EU that they will agree to anything in the long term. That is what has been happening, and this Government are thinking, "We have so many difficult fish to fry at the moment, we had better not confront them on this. This is the important thing we have to go for". As a result, more and more power seeps away, and I put it to him that sooner or later that has to stop.
As Martin Howe QC said in evidence to the European Scrutiny Committee, the Bill might stop us on the escalator, but it does not stop the escalator going up. A constant stream of powers and functions-not new competences or changes in voting arrangements that will trigger referendums-is still travelling in one direction to the EU. It is in the textbooks: it is called the doctrine of the occupied field. Once a power has been gained by the EU, the EU can only delegate it back to member states; member states cannot get it back. It is a doctrine formulated, of course, by the European Court of Justice in order constantly to consolidate the federal character of the EU.
The occupied field is virtually full; very little more can be put into it. Does my hon. Friend also accept that one of the difficulties we are confronting is the question of political will, which we have not yet mentioned, and that the real problem, which emerged from some of his previous comments, is that we have been verging on appeasement for far too long?
I totally endorse that comment by my hon. Friend. There might even be in this coalition, for reasons of political convenience, a will in the wrong direction. It is certainly not what the British people want or what we stood for in our election manifesto.
Provided that the UK courts recognise the sovereignty of Parliament, any legal dispute or clash between the British legal system, under the sovereignty of Parliament, and the European Community legal system, would be resolved by political negotiation. However, that is only the case so long as the UK courts recognise the sovereignty of Parliament and our right to suspend selectively legal instruments. That is a very important negotiation lever. But will that lever be available to Ministers in the future? Will that option be available to Parliament and future Governments? That is where the challenge lies. This is the crux of why we need a true sovereignty clause.
Let me revert once again to the much-quoted Professor Adam Tomkins. The hon. Member for Caerphilly said that he could not see any threat from the European Union to the sovereignty of Parliament. Professor Tomkins accepts in principle that we can legislate unilaterally to suspend Community instruments, when he says:
"If an Act were to be passed in terms such as these the courts could not refuse to apply it without asserting a power which our constitution has not hitherto accorded to them and to which no English court has yet laid claim. Should the issue arise, however, the response of the British courts cannot be predicted with certainty."
That is where the threat from European law arises: "cannot be predicted with certainty". Professor Tomkins goes on to talk about what would happen
"if the United Kingdom refused to pay...a penalty"
for a breach of European Community law,
"insisting on its national sovereignty".
Incidentally, that is something that has been recommended to try to sort out the budget by no less than Lord Heseltine, so he should want Parliament to be able to assert its sovereignty. However, I do not know whether he understood the consequences of what he said, because there is no legal way for the Government to withhold payments to the European Union unless we suspend the legal instrument under which we have to make such payments.
As was quoted earlier, Professor Tomkins also said:
"European Union law is far from being the only contemporary challenge to the doctrine of parliamentary sovereignty."
By that he means that European Union law is indeed a challenge to parliamentary sovereignty, so I do not quite understand what the hon. Member for Caerphilly meant when he said what he said. Professor Tomkins went on-I am selectively quoting, but these are the relevant parts-to say that
"certainly nothing in clause 18...which addresses the problem of the further development of EU law at the hands of the European Courts",
addresses the further development of ECJ jurisprudence. He continued:
"Let us not forget that many of the doctrines of EU law that have posed the greatest challenge for parliamentary sovereignty find their origin not in the articles of the Treaties, nor even in European legislation, but in the case law of the ECJ."
That takes us back to the Van Gend en Loos and Costa cases. When we reach a point at which the ECJ makes a judgment that is contrary to our national interest, should our Parliament not be able to say, without fear from our own courts, "I'm sorry, up with this we will not put"? That is the position that we need to be in. Professor Tomkins says:
"Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the ECJ."
The hon. Gentleman makes the point that there is absolutely nothing in the Bill-and no indication whatever from the Government either-to say that the Government do not accept the primacy of European Union law. That is the fundamental point that we are at. I therefore take his comments to be a direct challenge to what his Government are proposing. My second point is that we are also talking about the duality principle, whereby European Union law has effect in this country only because of an Act of this Parliament. That is our position.
I think I am safe to agree with what the hon. Gentleman says, and that is why clause 18 is not a sovereignty case, as he says. Therefore, if he agrees with everything that I am saying, I cannot quite understand why he does not want to make clause 18 a sovereignty clause. It would be quite easy to do so. I cannot for the life of me understand this. What could be less contentious than a declaration in the Bill that said, "The sovereignty of Parliament is hereby reaffirmed"? The idea that this would somehow open the issue of parliamentary sovereignty to judicial interpretation seems to me the daftest bit of legal advice of the lot. We make the statute and statute overrules everything, so if Parliament is sovereign and says in statute that it is sovereign, we clobber whoever challenges that; indeed-it is up to Parliament-we could actually sack the judge who tried to do that.
The latest Act would prevail over all the previous Acts. Therefore, in so far as there was any uncertainty or ambiguity in any previous position, including the provisions of clause 18 as drafted, if they were separately enacted, the fact that we had passed an enactment reaffirming our supremacy would be not only a signal to the courts, but a requirement on them to give effect to it.
Absolutely, and it would not be open to Lord Hope or any others to say that the sovereignty of Parliament was being qualified bit by bit because the rule of judges was the fundamental principle of the constitution. It would not be open to him to say that, and Parliament would be able to make it clear to him explicitly that that was not in the constitution of this country. We should want to do that, because we are democrats and we believe that we hold sovereignty on behalf of the British people. We want a democratic political settlement in this country, not rule by judges. That is not just the view of a few people on the Conservative Back Benches; I would hazard a guess that, when it comes to the crunch, it is the view of the British people-the constituents we represent. My hon. Friend the Member for Stone represents an all-party Committee that unanimously accepted much of what Professor Adam Tomkins said.
It is now time for Ministers to accept that they might not be right on this. As I said to the Minister for Europe, yesterday afternoon, I have been accused for 18 years of being much too pessimistic about the direction of the European Union, but when have I been proved wrong? That pessimism has been borne out time and again. That has not made me a bitter person; it has made me persistent. I congratulate my hon. Friend the Member for Stone on his incredible persistence, because one thing is certain: this argument would not have been advanced with such sincerity and intellectual rigour without his personal intervention. To that extent, it bears his imprimatur, but he speaks on behalf of the British people on these matters.
When I first came into the House in 1979 it would have been inconceivable that anyone would even discuss the sovereignty of Parliament, because it was so much a part of the fabric of how the nation had been governed, and how it understood its Government, over nearly three centuries. We all know that the doctrine of the sovereignty of Parliament can be a tyranny. It is, after all, only a temporary majority in the House of Commons that can change our constitution and our laws. That knowledge was held by the House and informed the great debate that Lord Hailsham tried to start when he spoke of elective dictatorships, even though he was making a wider point about changes to the constitution. It was certain, however, that this House was sovereign, and that that could be borne because no House of Commons can bind its successor. That created tolerance for any actions that came to be seen as tyrannous, because they could not be held beyond a Parliament. That became a reality when we became a democracy.
I give a cheer for my right hon. Friend Mr Redwood and my hon. Friend Mr Cash-who should really be my right hon. Friend-for remembering the constitutional developments involved. The House has now lost any sense of narrative about who we are, what the House is and what this country is. I weep when I hear Labour Front Benchers-and Mr MacShane-these days. Some of them were not here when the wonderful Peter Shore was in the House. In 1982, speaking on a referendum Bill just before the election, he stood up and said that it was inconceivable that a whole generation of British parliamentarians had given away the most sacred trust and the thing that they prized most: democratic self-government. That is always what this has been about: who is the master? The master is the people. I think that the American revolution was the third stage of the English revolution. In fact, we are the representatives of the people, and it is their continuity and their fortitude that we depend upon for the very survival of this House.
During my time in Parliament a lack of trust has developed in the protestations of Government that nothing is really changing. We are told that we do not have to worry our heads. Honourable Ministers have stood at the Dispatch Box and told me that nothing has really altered, and that in substance we are where we were. That is not borne out, however, by what has happened. The line of direction-where this is all heading-has become painfully clear. It was clear long ago.
The occupied field was referred to earlier, and I see close by the Secretary of State for Work and Pensions, who made his reputation as a newcomer to this House of Commons and was advised that his career was ruined. That is one of the tortures that is extended to everyone. As I look around the House, I see many who were elected because they gave undertakings to their constituents that they profoundly believed that there was a need for an expression directly on behalf of the people on the issues that confront us. I am very interested to see how we drift when we come to the comfort of these Green Benches and we forget the solicitations of the prospect of office. We will forfeit the good will of those we count as our friends if we march towards a conclusion that is not now, I think, that of the British people.
Let me make the argument about why I think this reaffirmation of sovereignty is important. It is because I have seen in my time in Parliament-I am, of course, older than I look, to my regret-the degradation of the sense of the British people that ultimately, they control their Government, through general elections. Everyone in this Chamber will have met the disillusioned and the despondent. "It does not matter what we think," they say, "We are ruled by others."
I have already mentioned Peter Shore, but there was also Tony Benn, who had a fivefold construction for the question of whether we are a democracy. I have always refined the issue down to two of his questions, which seemed to convey the essence of the point. First, who makes the laws? Many of our people are deeply confused about that. Are they made in this place or elsewhere? The second question he asked was: how do you get rid of them?
The British people have faced those puzzles for a long time now. We do not know who makes the laws-I am talking about the generality of those whom we represent. They do not know. "Is it Parliament?" "No, it is the European Union." We play up to that game. On the Front Benches, they always pretend it is always someone else-"We are only doing what we have entered into because of a treaty obligation"-but treaties are, of course, subordinate to legislation. We never emphasise that enough. The Crown makes treaties. The common law is subordinate to statute. We do not state that loudly enough when we are confronted with judges who are now trying to propose that arrangements are not quite as we understood them. They know the tyranny that Parliament can be. We are the element that should make this bearable by the people whom we represent. We are their representatives. As I was reminded by my hon. Friend Jacob Rees-Mogg, the Second Treatise of Locke, which informed the American revolution, also informs our view of constitutions. It means that we can never give away that which is theirs. Yet we have done that throughout the time I have been in this House.
I support the amendment not because I want to, but because I think it unbelievable that Parliament is being asked to affirm the sovereignty that has been a feature of our constitution for 300 years, as interpreted by constitutional writers, and that we are now seeing judges who equivocate. There are now two legal orders in the country: the European legal order, made up for themselves by the courts of the European Union, and our own legal order. I believe profoundly that the latter must take precedence, and that is the assertion of the sovereignty of Parliament that I should like to see in the Bill. I cannot imagine how the House of Lords will look upon this "expression of sovereignty". Sovereignty is a given, yet now it is questioned.
My final point relates to some of what has been said in the speeches to which I have listened today. The act of government, and the acts of Parliament, are an expression of self-confidence as well as self-government. What I have witnessed is a fearful cowering, and a series of Executives who accept things, with modifications, and "triumphs" are always declared. "Game, set and match" still rings in my mind. This is not about that, however; it is about the continuity of our own constitution, and our ability to govern ourselves through this instrument of Parliament. I think that the Members who expressed their views on scepticism and the like in their election manifestos should hold true to the electorate to whom they gave those undertakings and support the words in the amendment, however unnecessary they should be, in the context of the Bill.
Order. Before I call the next speaker, let me remind the Committee that the debate will end at 10 pm. I want to ensure that the Minister has sufficient time in which to answer all the questions that have been put to him, and that the mover of the amendment has time to reply. May I ask the remaining speakers to bear that in mind?
As you see, Ms Primarolo, I am surrounded by a large number of papers. I have asked many questions during my time as a member of the European Scrutiny Committee, and I hope that I shall not need to rehearse much of the evidence that we received. I hope that Members have taken the trouble to read that evidence rather than merely bringing their prejudices to the Chamber, warmed up for the day.
This is a joke Bill, and clause 18 is the biggest joke in it. It is a silly Bill. As we have already heard, it gives us no ability to change anything. My hon. Friend Thomas Docherty quoted a Member who said today that at least the clause did no harm. In fact, it does nothing positive at all.
I respect Mr Shepherd, who has often spoken very emotionally about sovereignty and our Parliament's ability to hold back the tide of European power. He emphasised that repeatedly during our debate on the Lisbon treaty, and he spoke very well tonight about many principles that we all hold dear. The joke lies in the suggestion that those principles-of self-government, the will of the people, and the things that we wish to do-have been filtered through clause 18 to give it some force, for it is clear that the clause makes no difference to what went before or what will come afterwards. Section 2(1) of the European Communities Act 1972 gave primacy to EU law by the will of this Parliament. That will continue, regardless of whether we pass the Bill-and in particular, regardless of clause 18.
The joke is also being played on the Eurosceptics on the Back Benches, and I think that they know it. The joke is being played on them by the Government, who are suggesting that the clause somehow constitutes a response to the promises that they gave to their constituents. They are saying, "This Conservative-led Government will give you back some kind of sovereignty." As was pointed out by Chris Heaton-Harris, if we pass clause 18, these matters may be judged in court. Professor Tomkins said in his evidence that this was a dangerous clause because it put down a written constitutional principle, and any principle that is written down can then be challenged in court. The measure may therefore tempt Back Benchers to go to court when they feel they are not getting a hearing from Front Benchers.
If the Eurosceptics did not put their careers, and maybe their finances, before their principles, the true solution for them would be to leave the Conservative party, which is clearly not a Eurosceptic party-it is not going to challenge European sovereignty-and to join the UK Independence party instead. They could then try to build up UKIP into a force that people might vote for. It would be a party that wished to change things fundamentally by opposing and overturning the 1972 Act-perhaps by making laws in this place that challenge and ignore current EU law, as Mr Jenkin suggested-and thereby causing that to be judged in a court of law. Would a judge strike it down or not? Would the European Court of Justice try to strike it down by some other means?
That would come about only if UKIP Members were in the majority here in Parliament. It will not come about under this Government. The terrible thing is that this is a joke being played on the British people-on the people who voted for a Conservative party that cloaked itself in Euroscepticism without ever meaning to deliver any change in the relationship between the EU and this Parliament.
When the Lisbon treaty went through I said that it marked a tipping point, in that it was tipping power to Europe in a way that could not be changed unless we changed the 1972 Act, because we cannot get out of the deals that have been done. I was Chair of the European Scrutiny Committee at the time, and I think the rest of the Committee agreed with me.
I happen to like the progress that has been made, however, as I am a Europhile. I think that Europe is our saviour, rather than our enemy. I think that as part of Europe we will go forward as a stronger community and with a better culture than we would have if we broke away from Europe. I have no wish to see my world shrunk politically or culturally, or for the people's rights, defended by Europe, to be taken away by our going back into partisan fights between right-wing capitalists and left-wing statists.
Is the hon. Gentleman in favour of Europe-Brussels-being the sovereign Parliament, or London or Scotland? As a Scottish MP and a Scottish Member of the southern Parliament, where does he want the major power to reside-Edinburgh, London or Brussels?
When I observe the behaviour of the current Scottish National party Government in Scotland, I see my world-where I live-shrinking. I see it shrinking to the point of stupidity, wrapped up in trivia and false history. That has no attraction for me at all. The forces of nationalism are very dangerous, particularly in small countries.
The Second Deputy Chairman:
Order. Hon. Members are fully aware that only one Member should be on their feet at any one time, rather than everyone standing up and shouting together. Mr Connarty has the Floor. Perhaps Members will bear that in mind, and perhaps they will also bear in mind the clock, in order to ensure that the final Member to be called gets a chance to speak.
I certainly will bear that in mind. I am very aware of the clock, and I think-
I think that the-
The hon. Gentleman is showing why my world is shrinking. The bullying culture of nationalism is very fierce.
The Second Deputy Chairman:
That is enough. Mr Connarty has the Floor. I ask Mr MacNeil to be quiet and to listen to the debate.
I am grateful, but I really do not need protection from the bullies on the Scottish nationalist Benches.
I believe that this joke is very serious and dangerous. The Front-Bench team can be very persuasive, and it has to convince people that this Bill, and in particular this clause, changes things-but it does not.
Will the hon. Gentleman give way?
I will at the appropriate time. I specifically chose the questions that I asked again and again in the evidence sessions: will clause 18 change the way in which the courts interpret their duty to review legislation in the light of EU law under the European Communities Act-and if not, what is the point of having it? I asked that of everyone who came to give evidence, and they all said that the clause would not change things; when pressed, they said that it would make no difference. In fact, it is a restatement of where we are, and I accept where we are. This is not about giving up sovereignty to the EU or to anyone else; it is about our deciding in this House that we would give the EU power to make laws within certain spheres and that the laws then passed would have primacy. But it is the choice of this Parliament, and if this Parliament chooses to take back that power by doing something that says, "We will challenge this," we are able to do so.
The arrangement is not changed by this clause, but the clause is dangerous because it attempts to con the British people into thinking that it makes a difference. It is also dangerous because Professor Tomkins is right. He is a professor at the university of Glasgow, but he gives advice on constitutional affairs to the House of Lords and he has said that the clause invites a challenge and puts into a Bill something that people will use, perhaps for mischief or for some other reasons.
The clause does not change anything. We have these powers, and we could take them and use them; to put them into a Bill is to mislead people. That is shown in every piece of evidence now lying around me on this Bench: everyone we asked either said that in their written submission or answered the question by saying that it was true that the clause did not make a difference. I listened to the speech made by Mr Clappison, and he not only made some good points that agree with what I am saying, but cited some of the evidence that we received from the professors and others, who all said that the clause would make no difference.
It is not right to debate this matter without referring to the amendments, because that is the purpose of this section of the debate. The amendments in the name of Mr Cash and others just add to the confusion. They have drafted something that pretends to be different from the current situation but is not. Adding comments about common law and about preambles before the clause does not change the clause; it just says that under a law that those in this Parliament passed by their sovereign right we gave away certain primacy in law to the EU under section 2(1) of the 1972 Act. What we put before this, or what we put after it, does not make any difference.
Why does a Bill that says, "We will give the people of this country power to make choices, and power over the EU when it makes a proposal," not contain the right to have a referendum on enlargement treaties? Such treaties are the only ones that will definitely come before this Parliament in the next period, and probably for a very long time after the Lisbon treaty. Why does this Bill not say that that power to have a referendum is going to be given to this Parliament? Why does the Bill not provide an automatic decision that such a referendum must be held? It is because the Government are playing a joke, not only on the people in this place but on all the people of the United Kingdom. If the Government were serious, that provision would be in the Bill. If they were serious, the Bill would contain something different from this clause. The amendments in the name of the hon. Member for Stone and others would not change that.
However, amendment 52, which was tabled by the Leader of the Opposition, is worth supporting because it proposes that the Government will report annually on how much of this Bill has been used to challenge anything coming from Europe. That would give everyone a chance to see whether the Bill is the joke that I say it is, or something of substance. I challenge the Government to accept the amendment. If they are serious and really think-I cannot imagine how deluded they would be to think this-that clause 18 makes a difference, I urge them to accept amendment 52, because we would then have a serious matter before us. We would have a Bill approved by the Government that would not just be a waste of time, because it would allow us, and the people of Britain, to judge annually whether it is a waste of time. That would make a major difference where nothing else would.
I am not angry about this, because I already believed that this is what would happen if we ever got a Conservative Government. I said that from the Government Benches as the Lisbon treaty went through, and I said to the person who is now Foreign Secretary and others that if the Conservatives ever got power they would not be the Eurosceptics that they pretended to be in opposition. This Bill and this clause show how true that is.
I am conscious of the fact that this has been a long debate and that there are many points for the Minister to respond to so I shall keep my remarks short. Much of what I would have said has been admirably covered by my colleagues on this side of the Committee.
It is a sad indictment of how much power has drained away from the House that we have to debate a sovereignty clause. My hon. Friend Mr Shepherd, who is no longer in his place, said that when he came to the House in 1979, such a debate would have been unthinkable. We must ask why we are in this position now. Obviously, it is because of the European Communities Act 1972, which was the start of the problem. As a result of that Act, the House handed over to Brussels-in those days it was not the European Union but the European Economic Community-the power to take decisions on behalf of the British people on matters of commerce. Over the years, that power has expanded to include many different areas.
I know from my constituents that time and again they are infuriated by the amount of legislation affecting their everyday lives that emanates not from Parliament but from the European Union. I congratulate the coalition Government on trying to do something about this problem, but, sadly, I fear it is too late-like shutting the stable door after the horse has bolted. The problem is that the powers have already gone and we are just putting a sticking plaster over what is sadly now a gaping hole.
I pay tribute to my hon. Friend Mr Cash for attempting to stiffen and improve clause 18 on the House's sovereignty. We should not have to say that this House is sovereign-as Lord Tebbit said in an article a few weeks ago, it is rather like the drunk in the bar saying he is sober. The House is sovereign and we should not have to keep saying so. The clause seems to do no more than state what we already know to be the position. It does not try to amend the law at all. It was sensible of the European Scrutiny Committee, as soon as it saw the Bill and this clause, to embark on a detailed examination of what they meant, sensibly calling witnesses before it. The House sets up Select Committees, so it makes sense to heed what they say. The Committee and its Chairman have tabled the amendments to the Bill and for that reason, among others, I will support their amendments.
There are doubts about why it is necessary to include clause 18 in the Bill. The amendments seek to clarify the position, and to make it easier for judges to examine the reasons why the clause has been included, should they ever be in the position of determining where sovereignty lies, as they will see that the House wants to ensure that it lies here with the House. We derive our power from the will of the British people, who give us power. I believe that that power should stay with us in the House, and not be passed to Brussels, but those are arguments for another day. Today is about how we make best use of the work that has been done by the European Scrutiny Committee to strengthen clause 18, and for that reason I support the amendments.
I am grateful to all right hon. and hon. Members who have taken part in today's debate: my hon. Friends the Members for Bury North (Mr Nuttall), for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris), for Harwich and North Essex (Mr Jenkin), for Aldridge-Brownhills (Mr Shepherd) and for Dover (Charlie Elphicke); my right hon. Friend Mr Redwood and my hon. Friend Neil Carmichael; and equally the hon. Members for Luton North (Kelvin Hopkins), for Caerphilly (Mr David), for North Durham (Mr Jones), for Dunfermline and West Fife (Thomas Docherty), and for Linlithgow and East Falkirk (Michael Connarty).
The debate has moved between passion and intense thoughtfulness, and both those qualities were demonstrated in the opening speech of my hon. Friend Mr Cash. Although he and I have our differences this evening, I want to place on the record my respect not just for the contribution that he has made to tonight's debate but for the commitment that he has shown in his chairmanship of the European Scrutiny Committee. He is a gentleman with whom I may disagree from time to time, but I happily salute him as a patriot and a champion of the rights and privileges of the British Parliament. We differ over which form of words and which draft of amendment will best accomplish the objectives that we seek. As today's debate covers both the question of approving clause 18 and the amendments and new clauses that have been tabled, I want to structure my comments first by making clear the Government's purpose in introducing the clause and then going on to address the individual amendments and new clauses.
Clause 18 addresses the concern that the principle of parliamentary sovereignty, as it relates to European Union law, might in future be eroded by decisions of the United Kingdom's domestic courts. It would provide authority that could be relied on to counter arguments that European law could become an integral and autonomous part of the UK's legal system independent of statute. It responds to concerns that the doctrine of parliamentary sovereignty as it relates to EU law may not be unassailably absolute, and may be qualified. The concern is that the doctrine of parliamentary sovereignty is part of common law-a point illustrated by the report by the European Scrutiny Committee and the evidence it took, and clearly a matter that is subject to intense academic debate and contention.
The risk is that British courts might, in future, be attracted to the argument that European law no longer takes effect in this country by virtue of an Act of Parliament but has become entrenched in our legal system, enjoying an autonomous status-in the jargon, it has become a basic "grundnorm" underlying the UK legal system, to be applied by our courts and against which ultimately UK legislation falls to be measured.
There are three main sources for that concern. The first stems, yes, from the arguments run by the counsel for the prosecution in the so-called "metric martyrs" case of Thoburn v. Sunderland City Council. It is worth saying a little about that case because the issues raised were of great significance. The prosecution argued that the European treaties' effect in domestic law did not depend-merely, at least-on the terms of their incorporation by the European Communities Act 1972 but, to a decisive extent, on the principles of European law itself.
The argument was that European law had been entrenched rather than merely incorporated, by virtue not of any principle of domestic constitutional law but of principles of Community law already established in cases such as Van Gend en Loos v. Nederlandse Administratie der Belastingen and Costa v. Enel, to which hon. Members have referred in this debate.
If that argument had prevailed and if it were to prevail in the future, we would need to think about what the practical effect might be. For example, let me take the prohibition on discrimination on grounds of nationality set out in article 18 of the treaty on the functioning of the European Union. Our courts have recognised that the provision has direct effect in the United Kingdom. Under the prosecution's principle in the "metric martyrs" case, the courts would interpret that prohibition and seek to enforce it as part of UK law, even if Parliament were to remove the statutory mechanism by which it had been given effect in the UK, by either repealing or amending the European Communities Act 1972.
But if we pass clause 18 and enshrine in statute the principle that the authority of European law derives solely from Acts of Parliament, then the courts could not do that because article 18 could have direct effect in the UK only because Parliament had provided a statutory mechanism to allow that. If that statutory mechanism were to be repealed without replacement, there would be no basis on which it could be given direct effect in this country. Although those arguments were rejected by Lord Justice Laws, they could well be made again in future cases.
That was a case of first instance and we do not know what might happen in future. Does my right hon. Friend accept the reasoning of Lord Bridge in Factortame? He clearly stated that our adherence to the principles that flowed from an Act-the European Communities Act 1972-and therefore his judgment was based on a voluntary acceptance by this House, in its sovereignty. I add the words "in its sovereignty", because that is the key issue.
Yes, and I shall come on to say a bit more about that in a moment.
Clause 18 can be read simply as a historical fact. It does not give continuing force to the sovereignty of Parliament. It states:
"It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law...falls to be recognised and available in law in the United Kingdom."
That is a historical fact, and can be relegated as no more than that.
What is different about clause 18 compared with the current legal position is that for the first time it provides a clear statutory point of reference, to which the courts would have to have regard in considering any cases in future that were comparable to that brought before Lord Justice Laws.
The second source of the concern that has been expressed are the various obiter remarks, to which my hon. Friend the Member for Stone and others have referred, made by senior judges such as Lord Hope and Lord Steyn, albeit in cases that did not deal directly with European Union law. My hon. Friend starkly expressed his concern that at least some members of the senior judiciary had an agenda that deliberately set out to challenge the historic privileges and authority of Parliament.
The third source of concern arises from various academic commentators on EU law, ranging from Professor J. D. B Mitchell back in 1980 to Martin Howe QC in 2009.
I will come to that precise point later in my remarks. The point I was making a moment ago was that, in a pamphlet published in 2009, Mr Howe expressed very similar concerns to those expressed today by my hon. Friend and others that there is a serious risk-if not an immediate one-that there would be further challenges to the principle that it is only parliamentary action that gives authority to EU law in this country.
We have taken advice from lawyers across Government, not just from those in the Foreign and Commonwealth Office-although I would be the first to defend the lawyers in my Department from some of the criticisms made during the debate. The Government's analysis has led us to the conclusion that to date there is no persuasive legal authority to support the contention that the doctrine of parliamentary sovereignty in relation to EU law is no longer absolute. However, there is a need to put the matter beyond speculation for the future. By confirming in statute that directly effective and directly applicable EU law takes effect in this country only by virtue of an Act of Parliament, we are putting the matter beyond doubt for the future.
Certainly not. I am saying that we made sure we took legal advice from all the relevant Departments across Whitehall. The views I am expressing-what is in the Bill-reflect the legal advice that has been given, as well as the political decisions that Ministers have taken about what should be included in the legislation.
As I said on Second Reading, clause 18 is declaratory or, as my hon. Friend the Member for Dover said, it is a codification. The clause creates a statutory point of reference to which any future court that considers an argument about the source of authority for European law in this country must have regard. It reflects the dualist nature of our constitutional system, under which international obligations-including those assumed by the UK through our membership of the European Union-are not self-executing within the UK legal system. The fact that the UK is dualist means that European Union law is enforceable here only because this Parliament has legislated to make it so. The clause makes it clear that such European law has authority only by virtue of the fact that Parliament has, through its Acts, decided to import it into the domestic legal order.
In the event of any litigation arising where a party sought to claim that directly applicable or effective EU law had an autonomous legal existence in the UK, the other party would be able to counter that argument by referring to clause 18 and, similarly, judges would take this into account in addressing the arguments raised in their judgments.
I am most grateful for the Minister's final remarks about the judges. He tried to discharge the point, which I had already made, about the argument that comes from the judges in the Supreme Court and the judicial trends-there was pretty well unanimous agreement on those in the evidence that was given to us-towards a diminution of parliamentary sovereignty through the courts. He must accept that the very fact the judges made those remarks with regard to the Hunting Act 2004 and the case of Jackson in 2005 not only indicates but makes it a darned certainty that they will say such things in respect of other case law, irrespective of whether it is in the European framework or not.
That enforces the need for us to put on a statutory basis the position that European law has effect here solely because of parliamentary decision and not any other source of authority.
Clause 18 says that we gave away our primacy in terms of European law in section 2(1) of the 1972 Act. What is being done in the clause to take back from Europe the power that the people were promised would be taken back?
The hon. Gentleman is pre-empting the next section of my speech in which I want to make it clear what clause 18 does not do. I am not going to try to pretend to the Committee that it seeks to accomplish things that it does not do and is not intended to do.
The clause does not alter the existing relationship between European and UK domestic law, nor does it affect the primacy of EU law-a concept developed by the European Court of Justice well in advance of our membership of the European Community, and to which this Parliament gave effect in UK law as defined under section 2(4) of the European Communities Act 1972. My hon. Friend the Member for Harwich and North Essex was right to say, in quoting Martin Howe, that the clause would not stop the escalator, but that it would stop things getting any worse, as my hon. Friend would describe it, than the current position. It is worth saying that although Mr Howe made that comment about the escalator, he also said:
"In my view Clause 18 as presently drafted is valuable and is almost certainly sufficient to achieve its intended purpose of preventing judicial drift towards the erosion of the doctrine of Parliamentary sovereignty."
As our judges have recognised to date, Parliament remains free to amend or repeal the 1972 Act, or indeed other Act of Parliament, at any time. But of course the political reality is that if we chose to repeal the 1972 Act or to disapply unilaterally a particular piece of European Union legislation, there would be a serious crisis in terms of this country's relationship with the European Union. That might be a state of affairs that some hon. Members would wish to bring about and see as an opportunity, but that is not the Government's aspiration.
Clause 18 will also not alter the rights and obligations assumed by the United Kingdom on becoming a member of the EU, and it will be in line with the practice of other member states such as Germany, whose federal constitutional court ruled in 1993, in the case of Brunner v. European Union, that Community law applies in Germany only because laws passed by the German Parliament say that it does. Similarly, in Denmark the supreme court held in its judgment of
I want briefly to deal with two challenges that were made to the Government's case: Professor Tomkins's comments about partial legislation being worse than no legislation at all, and why we do not explicitly make this provision an amendment to the 1972 Act. On Professor Tomkins's argument, we disagree with his conclusion. The Government are clear about the particular mischief that we are seeking to address, which is to put beyond speculation the fact that this country has a dualist system and that the rights and obligations under the EU treaty, in order to be justiciable before our courts, have to be incorporated in our system through an Act of Parliament. It has never been the Government's intention in bringing forward this legislation to address the broader issues of potential challenge to parliamentary sovereignty over things such as human rights legislation or the impact of the devolution settlements, to which the European Scrutiny Committee drew attention in its reports.
The confusion arises in thinking that it is somehow possible to segment European law from domestic law when in fact the European Communities Act itself is domestic law, and the judges who are likely to adjudicate on the sovereignty of Parliament are our own domestic judges. It may well be an adjudication on a European case, or it may well be on another case, but unless the Minister addresses the potential challenge from the Supreme Court on whatever case, particularly under European Community law, he is not addressing the problem.
My hon. Friend is inviting me to go much further than my Department's responsibilities. I am very willing to put on record that, contrary to Professor Tomkins's fears, the Government, in choosing to legislate in this area, have no intention of indicating that other challenges to parliamentary sovereignty are unimportant or insignificant.
Hon. Members have asked why we are not amending the European Communities Act 1972. The principle that we applied is that what is important is what the clause does, rather than where in the statute book it is placed. Although the 1972 Act is the principal statute by which European law is given effect in this country, it can be argued that it is not the only statute that has that effect. Statutes as disparate as the Trade Marks Act 1994, the Chiropractors Act 1994, the Enterprise Act 2002 and the Equality Act 2006 make reference to giving effect to European law. Some provisions of the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 place Ministers from the devolved Administrations under an obligation to act in accordance with European law. That is why we have made reference in the clause to Acts of Parliament in a generic sense, rather than to the 1972 Act in particular.
I thought that my right hon. Friend would give way at that point, because he could see that I could not resist making a point. The status of EU law provision-the stand-alone arrangement that is unnecessary in its present form and achieves nothing-refers to the entire gamut of European legislation. If I may say so, it is exceedingly disingenuous of him to trot out the argument given to him by his lawyers that there is a comparison with the Chiropractors Act 1994.
We wanted to be certain that the clause caught every piece of legislation that it can be argued gives effect to European Union legislation in this country. My hon. Friend would have been the first Member of this House on his feet to criticise me had I left the loophole of legislation other than the 1972 Act that it can be argued has such an effect.
I shall turn to the specific amendments, starting with amendment 41, which was tabled by my hon. Friend. The amendment seeks to affirm the overall principle of parliamentary sovereignty in relation to EU law. I maintain that there is the difficulty that there is no existing statutory definition of sovereignty. The clause deals with one specific practical expression of parliamentary sovereignty. To introduce the word sovereignty more generally would invite speculative consideration by exactly the kind of ambitious judges whom he fears.
It is clear from the evidence to the Select Committee that there are differences of opinion on the nature of parliamentary sovereignty. Professor Wade is quoted as saying that
"the sovereignty of Parliament is ultimately a judicially recognised 'political fact'. And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly."
Professor Allan is quoted as disputing that:
"sovereignty should be seen, not as judicial recognition of political fact, but as a rule of the common law based on reason just like any other rule of the common law."
Something based on reason is self-evidently subject to change. Therefore, I do not believe that passing the amendment would provide the safeguards that my hon. Friends seek. I do not think that it would achieve the purpose as successfully as the Government's wording in the clause.
My right hon. Friend is doing a grand job and has already persuaded me that I should not refuse to vote for clause stand part, but he has not persuaded me not to vote for amendment 41, tabled by my hon. Friend Mr Cash. Why, if that amendment is defective in the way that the Minister describes, did our Front Benchers approach my hon. Friend when we were in opposition, take over an identical amendment that he had drafted and run with it extensively in both Houses?
My hon. Friend is ingenious and teasing in his question, but I am here to represent the policies of the Government, not to account for what our party said a few years ago in opposition.
My fear is that the impact of the amendment could be the opposite of what my hon. Friends who support it hope for. My hon. Friend the Member for Stone and Professor Tomkins have warned of a new trend of judicial activism, and my hon. Friend argued that powerful elements in the judiciary were seeking as a matter of policy to challenge the principle of parliamentary sovereignty. I find unpersuasive the argument that to introduce the word "sovereignty" into the Bill would quell that ambition. The word lacks a clear definition-we have found about 30 statutes that include it, and they all refer to territorial sovereignty, not to constitutional authority. There is no existing accepted definition, and I fear that the lack of a clear definition would encourage the very judges against whom my hon. Friends warn me to interpret the substance, scope and limits of sovereignty through judicial activism.
Parliament has the right, which the courts would be obliged to uphold, to repeal or amend the European Communities Act 1972 or any part of it. It also has the constitutional power to disapply a particular piece of EU law, although that would provoke the sort of political crisis in our relations with the EU that I alluded to earlier.
I am incredulous about this argument about the word "sovereignty". Is my right hon. Friend seriously suggesting that if Parliament put into statute the fact that it was sovereign, that would be a come-on to the judges to come and get it? I think if he reflects on that for a short time, he will realise that he has been given a lawyer's excuse for rejecting the amendment, not a proper reason.
If one follows the logic that my hon. Friend and others have adduced this evening about the ambitions and activism of certain members of the senior judiciary, and if one considers the arguments that would be made by counsel and parties on both sides if a case were pleaded before a court-they would inevitably draw attention to the absence of any definition of parliamentary sovereignty-one sees that my hon. Friend underestimates the risk that the amendment would encourage judicial activism rather than provide an antidote to it. The concerns about definition apply to other amendments and new clauses, as well.
I wish to say a brief word about the explanatory notes, which have been mentioned in a number of speeches. I note that the European Scrutiny Committee's report recommended that they should reflect the balance of opinion on the matter. As my right hon. Friend the Foreign Secretary said on Second Reading, references to the common law are meant simply as a contradistinction to statute, given that the principle of parliamentary sovereignty is defined nowhere in statute. They are not meant to be determinative of the origin of the principle, which goes far beyond the scope of the Bill.
Although I do not believe that one phrase in seven substantial paragraphs of the explanatory notes bears the weight that some of my hon. Friends have placed upon it, I will respond to the concerns that have been addressed. The coalition will amend the explanatory notes before the Bill enters the Lords, to address satisfactorily the concerns that the European Scrutiny Committee has raised. That will in no sense change the effect of the clause, which is couched in terms of the status of EU law in the UK legal order, and does not refer explicitly to parliamentary sovereignty or take a position on the origins of that principle.
I have had no private conversations with my hon. Friend the Chairman of the European Scrutiny Committee-the hon. Member who expressed concern. The hon. Gentleman is in his place. Like every other hon. Member, he has had the opportunity to hear about the proposed change.
New clause 1 deals with section 3(1) of the European Communities Act 1972. By virtue of that Act, jurisdiction has been conferred on our courts to determine and adjudicate on disputes arising under EU law. That jurisdiction does not arise from the treaties, nor have the courts conferred it on themselves. Courts here possess that power because Parliament has determined that it is appropriate for them to do so and has legislated accordingly.
Section 3(1) of the European Communities Act provides that, for the purposes of legal proceedings in the UK courts, any question about the meaning or effect of the treaties is to be treated as a matter of law and requires the UK courts to take judicial notice of the treaties, the Official Journal and any decision of the European Court of Justice. Together with section 2, it is a cornerstone of the European Communities Act and, like the rest of the measure, subject to appeal or amendment by Parliament if we choose.
New clause 1 would restrict the exercise by the courts of their jurisdiction to interpret and address issues of EU law by ensuring that it does not extend to construction or interpretation by the courts of the nature or legal effect of parliamentary sovereignty.
New clause 1 is ambiguous because the lack of a definition of parliamentary sovereignty may encourage the courts to intervene rather than discourage them from doing that. I also think that it is mistaken because the primacy of EU law in the UK legal system does not flow from section 3(1) but is addressed under section 2(4) of the European Communities Act. If the intention is to guard against any risk of our courts using European Court jurisprudence to undermine parliamentary sovereignty, I do not think that it would achieve its desired objective given its drafting.
New clause 4 refers to part 3, but its primary focus is clearly clause 18. In one sense, I support the new clause's aim. We have made it clear that clause 18 is declaratory and does not alter the existing relationship between European and UK law, and that the rights and obligations assumed by this country on becoming a member of the EU remain intact. However, I am afraid that the Government cannot support the new clause, which implies that something in clause 18 could adversely affect the existing constitutional law on the sovereignty of Parliament in relation to European law. That is not the case. As hon. Members can imagine, we examined the matter carefully and took legal advice from the Foreign Office and elsewhere in Government. I therefore urge my hon. Friends not to press new clause 4.
Amendment 52, tabled by the official Opposition, need not detain us for too long. It is misleading because it implies that the ECJ has a role in determining how European law takes effect in this country. When the hon. Member for Caerphilly next refreshes his memory by reading the treaty, he might see that this is not a matter that falls within the ECJ's jurisdiction. It is a matter for the UK courts, and no less a figure than Jean-Claude Piris, recently retired as head of the Council's Legal Service, said in his evidence to the Committee that it is for each member state to determine the constitutional mechanisms through which it gives effect to the legal obligations arising from membership of the European Union.
The Government think that this amendment is not necessary. It is not necessary to take up additional parliamentary time through the process that the Opposition propose. In the event that there were to be a serious challenge to the authority and sovereignty of Parliament, I would expect that hon. Members, on both sides, would want an immediate statement from the Minister and an urgent debate, instead of waiting 12 months for an annual report, which is the only remedy that the hon. Gentleman proposes.
In the coalition's programme for government, we said that we would examine the case for a United Kingdom sovereignty Bill, to make it clear that in terms of European law ultimate authority remains with Parliament. Through clause 18, we are affirming and confirming that the status of European law in our legal order is dependent on a continuing statutory basis. That is a commitment that the Government believe it is right to put beyond any future speculation. The place where future UK law and future decisions about the authority of European law should be determined is in Parliament and nowhere else. I commend the clause to the House.
I am very glad to see that the Prime Minister is in his place for these final moments. He and I have had some interesting correspondence. I thank all the hon. Members who have participated in this debate, which included some brilliant speeches from my hon. Friends the Members for Harwich and North Essex (Mr Jenkin), for Hertsmere (Mr Clappison), for Aldridge-Brownhills (Mr Shepherd) and others.
In the brief time that I have left, I confirm that I will press amendment 41 and I would be astonished if anybody voted against it. However, I am certain that they will. The difficulty that they will then be in is that, although I will not move the other amendments because of a lack of time and because the issues have been encapsulated in the debate, I have demolished the argument put up against the amendment that the status clause should not be by virtue of a common-law principle, both in respect of the academic arguments and of those that have been put forward by the Foreign Office in the explanatory notes. I have, I believe, demolished the argument relating to the question of parliamentary sovereignty, and I refer the Minister to the State Immunity Act 1978, which clearly deals with the question of the sovereign or other head of state in his public capacity. It is already in an Act of Parliament and, by the way, it is not defined, any more than "the rule of law" is defined in the Constitutional Reform Act 2005. It does not need definition: the statement and the principle stand.
The sovereignty of Parliament is inviolate, but requires to be reaffirmed, as the Prime Minister has repeatedly told us in the past, but unfortunately will not do through this Bill. With respect to the question about section 3, it eliminates the impact of the courts seeking to use the European Communities Act 1972 to achieve their objectives in relation to parliamentary sovereignty. The other provision in new clause 4 reaffirms the existing constitutional law on the sovereignty of the United Kingdom Parliament in relation to EU law, and I am glad that the Minister has said that he agrees with the sentiments, which I believe are justified.
Having said all that, I believe that we have had thoroughly good debate, and that, above all else, we have proved our point. We know that we are not going to win the vote. The Labour party has completely reneged on its principles, as expressed by the leader of the party when he said that their rubbish amendment was a matter of principle in defending parliamentary sovereignty. He must be joking! The fact is that clause 18 does not defend parliamentary sovereignty either.
Debate interrupted (Programme Order, 7 December ).
The Chair put forthwith the Question already proposed from the Chair (
Question accordingly negatived.
The Chair then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (
Amendment proposed: 52, in clause 18, page 11, line 30, at end add-
'(2) The Secretary of State shall prepare an annual report on the extent to which in the previous 12 months the provisions of subsection (1) have been challenged or questioned in the courts, including the European Court of Justice, identifying any challenge to the declaration contained in that subsection that the status of EU law is dependent on the continuing statutory basis provided by the European Communities Act 1972.
(3) The report made under subsection (2) shall be laid before Parliament for its approval.'.- (Mr David .)
Question put , That the amendment be made.
The Committee divided: Ayes 217, Noes 330.