Clause 1 — The rule of law

Orders of the Day — Constitutional Reform Bill [Lords] — 1st Allotted Day – in the House of Commons at 4:33 pm on 31st January 2005.

Alert me about debates like this

Photo of Bill Cash Bill Cash Conservative, Stone 4:33 pm, 31st January 2005

I beg to move amendment No. 364, in clause 1, page 1, line 7, at end add—

'(2) In this section "the rule of law" means in particular the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying both that law and the common law.'.

The Chairman of Ways and Means:

With this it will be convenient to discuss new clause 8—The rule of law (No. 2)—

'(1) Together with the sovereignty of Parliament, the rule of law shall continue to be a central principle of our constitution.

(2) The Lord Chancellor must use his best endeavours to ensure that the rule of law is respected.

(3) Nothing in this section shall make the duty of the Lord Chancellor under subsection (2) enforceable by law if it would not otherwise be so enforceable.'.

Photo of Bill Cash Bill Cash Conservative, Stone

These are very deep issues. In fact, we can say with confidence that the Constitutional Reform Bill, which opens "Part 1, Clause 1, The Rule of Law", is not an insignificant matter, to say the least.

In dealing with clause 1, I have tried to achieve a definition of the rule of law. The Bill establishes duties and obligations, boldly asserting:

"This Act does not adversely affect . . . the existing constitutional principle of the rule of law, or . . . the Lord Chancellor's existing constitutional role in relation to that principle".

Bearing in mind the fact that there must be some profound reason behind the Government wanting to achieve this, I believe that we must have a proper definition of what the rule of law actually means. I have suggested that it should be defined as meaning

"in particular the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying both that law and the common law."

I have chosen the words carefully because of a House of Lords case in which Lord Bridge made an important judgment on what we can call the Grampian case. The wording that he gave and the wording that I have used vary slightly for a specific reason. He said that the rule of law was

"the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".

Far be it from me to do more than offer suggestions about how the definition might otherwise be worded, but I am moving the amendment because at the heart of the question of the interpretation of the sovereignty of the Queen in Parliament is the fundamental fact that it is down to judges to give effect to the statutes that are passed in the House. By using the words, "that law", and referring them back to statutes passed by the Queen in Parliament, I am saying that doing that is the prime duty of judges.

There are rather esoteric cases about which it is said that judges might be given a jurisdiction in respect to the prerogative, but I disregard that for practical purposes. There is absolutely no doubt that the sovereignty of the Queen's courts extends to the common law. However, when we consider the interpretation of treaties, the key point is that only treaties that have been given statutory effect would fall under the parameters of my amendment.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Does my hon. Friend accept that in his attempt to define the rule of law, he is defining an element of it, rather than the complete territory covered by the expression? For example, the rule of law says that there should not be arbitrary use of power and that discretion should be conferred on a Government in a limited manner. Does he agree that he is attempting to define an important aspect of the rule of law?

Photo of Bill Cash Bill Cash Conservative, Stone

That is why the amendment includes the words, "in particular". My hon. Friend refers to the arbitrary use of power, but that would of course be dealt with under the rubric of the common law because that is the arena in which the judiciary rightly have not only sovereignty, but the right to intervene. One can immediately think of a series of common law remedies. With respect, I disagree with my hon. Friend's interpretation of my amendment because it does not leave anything out—it is inclusive. I am saying, however, that the specific reference to the words, "that law", refers back to treaties to which statute has given effect. We all know that treaties do not have any effect in domestic law unless they are implemented by statute, and the Bill would be greatly improved if it made that clear.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

Does my hon. Friend accept that directly acting European law, such as a European regulation that did not require the express consent of, or translation by, Parliament, would still be covered by his doctrine, because it would emanate originally from the European Communities Act 1972?

Photo of Bill Cash Bill Cash Conservative, Stone

Absolutely. That is where we enter extremely deep territory. We shall come on to those questions a little later.

The fact is that it is open to the UK Parliament, where it is prepared to do so, as a matter of political will that I think is well overdue, to express itself by statute inconsistently with the European Communities Act 1972. In McCarthy's v. Smith, Lord Denning, and in the case of the metric martyrs, Lord Justice Laws, made it crystal clear that judges are under an obligation to give effect to the latest, subsequent, inconsistent, clear and unambiguous enactment of the House.

For reasons that I shall not go into at this point in the debate, serious doubts arise both in the context of the European constitution and also in relation to the question of judicial drift, where it is becoming increasingly clear that judges tend to regard a separate body of law as being somehow superior to that which is enacted in the House. Not only must that be stopped, it must be clearly dealt with in relation to Bills such as this. Indeed, I have tabled new clauses entitled "Supremacy of Parliament" in relation to both the European Communities Act 1972 and the Human Rights Act 1998.

It is well established not only in McCarthys v. Smith and in the metric martyrs case that subsequent legislation passed by the House must be given effect by the judges but also in the context of the Human Rights Act, which I suspect is a matter of considerable concern to the Government at present. By passing that Act, despite my dire warnings and those of others as to what would happen, the Government have in fact found themselves in a considerable judicial or jurisdictional mess. Indeed, in the cases of Simms and O'Brien, as I said when I occupied my previous position on the Opposition Front Bench, Lord Hoffmann unequivocally stated that it was open to the British Parliament to legislate inconsistently with, or even to repeal, the Human Rights Act 1998. He said that if the Government did so, they would have to bear the political cost, but the bottom line is that it is open to Parliament to legislate, as I said in my previous capacity, with respect to both the European Communities Act 1972 and the Human Rights Act 1998, inconsistently with those enactments. It is the duty of judges to give effect to enactments providing that the enactments in question are clear and unambiguous.

That is what I mean by the words "that law" in my amendment. The rule of law means the rule of law exercised by judges in interpreting statute law and the common law. It is unnecessary for me to go into further detail on that question, as I have made my position abundantly clear.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

How does my hon. Friend's proposal in amendment No. 364, and the wording that he has been explaining, alter the current position?

Photo of Bill Cash Bill Cash Conservative, Stone

It is a clear statement of what is in my view the current position, with a proviso, although I would not want to appear pedantic. In the Grampian case, Lord Bridge stated the same proposition in slightly different wording. As I said when I moved the amendment, he has said that the rule of law means

"the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".

I say with the greatest respect to such a noble and learned judge that it might have been preferable to have made it clear that the law that was being applied was both that made by Parliament in statute and the common law. For reasons that we have discussed, that would have been a little more precise. I do not want to criticise anyone for having made a slightly shortened version of what I was saying, but I think that the amendment is an improvement.

The question of the prerogative is separate. It is a matter of concern that treaties are made by prerogative and that there is an increasing tendency for those treaties, by judicial drift, to be given a greater status than they have in the context of the making of statute law. Treaties, including of course the European Community's treaties and other agreements such as the European convention on human rights, can have full effect in domestic law only if they are supported and enacted by statute.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 4:45 pm, 31st January 2005

A moment ago, my hon. Friend said that it would be open to the House to repeal the Human Rights Act 1998, which would simply remove the ability of English courts to try European convention points in the courts of England and Wales. Decisions would have to go to the European Court of Human Rights to be justiciable. What would my hon. Friend say if this Parliament not only repealed the Human Rights Act, but passed an Act removing us from the European convention? How would courts under his definition of the rule of law deal with that? Presumably, our membership of the European convention on human rights is a treaty matter and dealt with by the prerogative, and therefore not within the power of this House or this Parliament to affect.

Photo of Bill Cash Bill Cash Conservative, Stone

I do not agree with that at all. I suspect that my hon. Friend Mr. Shepherd is about to leap to his feet. We had an interesting and quite heated exchange with the Foreign Secretary on this question on 16 September two years ago, when I was on the Front Bench, when he asserted that international treaties have primacy over statute. Of course, that is complete nonsense. After much further questioning over the following year, both written and oral, he eventually conceded that that was wrong.

I refer my hon. and learned Friend to the Commissioners for Revenue and Customs case and to the judgment of Lord Diplock in—I think—1967, in which he unequivocally stated that it is open to any statute to break a treaty. I paraphrase, but I have the full text in front of me if my hon. and learned Friend is interested. The bottom line is that this is very important territory and that is why I am so concerned that there are those who would like to bury the question of the supremacy of Parliament and would rather that it was not given the coverage that I would prefer.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

The hon. Gentleman will know that the Second Reading of the European Union Bill will be taking place next week, so I am sure that we will have more of this in that debate. Can he think of an example in recent history of a Lord Chancellor acting contrary to the principles set out in clause 1(b) of this Bill?

Photo of Bill Cash Bill Cash Conservative, Stone

I can say unequivocally that we have seen a serious invasion of the principles on which our constitution has been constructed, since 1688 at any rate—over and over again. That problem has worsened. It is extremely disturbing that that tendency has been perpetuated and entrenched by the Government, who have behaved wantonly with regard to the rights and principles on which our constitution is based. We could be here all day discussing that.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am not a lawyer, but there is a simple but important constitutional principle at stake. It has been adumbrated by parliamentary Committees, and it deals with the relationship of treaties to law. Treaties that exercise a prerogative power are subordinate to the legislative process. The European Communities Act 1972 has the force of law in Britain only because Parliament has thus legislated. Similarly, the European Court of Human Rights is subject to detailed legislation, so one can say that it meets the constitutional test. Other treaties, however, are pure exercises in prerogative power, and are therefore gainsaid by any direct reference in British law that is contrary to any of their provisions.

Photo of Bill Cash Bill Cash Conservative, Stone

I am grateful to my hon. Friend for that explanation and the reaffirmation of the position. It is important to consider what a constitution is. In the United Kingdom, we understand it to be the whole system of government and collection of rules, which would effectively be translated into a justiciable statute, as the courts would have the power to interpret the provisions of the Bill. That raises the stakes considerably. Parliament is involved, but only to a limited extent, in the making of treaties, which are laid before the House for 21 days under the Ponsonby rule. In a 2002 All Souls lecture, Lord Steyn said that

"the supremacy of Parliament is the paramount principle".

I wish to reassert that principle, and it is a matter of grave concern that it has been subject to continuing erosion by judicial drift. The cases of McCarthy's v. Smith, the metric martyrs and so on demonstrate that the European Union has assumed a legal personality, so we are in extremely dubious and difficult territory. In the 1964 case of Costa v. ENEL, and also in the Simmenthal and Internationale Handelsgesellshaft cases, the European Court of Justice has asserted its supremacy and superiority of jurisdiction not only over the laws of member states but over their constitutions. We acknowledged its primacy in the European Communities Act 1972, but only in respect of laws that had been enacted and functions conferred at that time.

The whole thing has got completely out of control, and we now have a deepening to the point where the European constitution could effectively become the rule of law for the United Kingdom. Under article 1.6, it is clear that the European constitution—through the European Court of Justice, with the revocation of the treaties, and the reassertion of primacy over the new treaty, which is completely new—would have the effect of subordinating the will of the legislators in the House to decisions that were taken by the European Court of Justice.

In other words, the rule of law and the principles contained in the Bill would subordinate the people of this country in their choices in general elections to the jurisdiction of the European Court of Justice in relation to all the matters in respect of which powers were conferred under the European Union Bill, which we are about to consider. Perhaps I can leave things at that for this purpose—although this is a very serious and deep question, we need to consider other matters today—but the bottom line is that this matter ought to be clarified, and the amendment is one way to achieve that.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

In our constitution, there is no true separation of the powers of the three main institutions of the state: the legislature, the Executive and the courts. Although we have three such bodies, their powers are mixed and mingled. The Executive come from the legislature, but each is supported by an interdependent civil service, and in the case of Parliament, by the House authorities. The courts are independent in their judgments, but the senior judge is a member of the Cabinet as Lord Chancellor, and the courts are run by the civil service, which is part of the Executive.

In such a constitution, strength comes from being part of the mixture and having a place at the table where power is exercised—in Cabinet. The Executive are stronger by being part of the legislature and by having a majority there. Parliament can benefit from holding Ministers to account in a very direct way, using questions, statements, debates and Select Committees. The post of Leader of the House is a senior Cabinet appointment. The courts benefit from having a senior Cabinet Minister—the Lord Chancellor—at the seat of power, arguing for judicial independence and being the Prime Minister's conscience by advocating the importance of the rule of law.

It is a sad reflection that the Prime Minister did not appreciate any of those important considerations when he set about abolishing the post of Lord Chancellor on the back of a reshuffle. It was a back-of-the-envelope job, decided at short notice, without even consulting the Lord Chief Justice, and done in the cosy atmosphere of the chums around the sofa at No. 10—of course, by that time the chums no longer included the then Lord Chancellor.

Lord Butler has expressed his concerns about the way in which the Prime Minister conducts his business, and particularly about the fact that the advice of senior civil servants is often not considered. We now learn from documents released under the Freedom of Information Act 2000 as a result of my requests that the most senior civil servant in the Department advised against dismantling the Lord Chancellor's role very strongly indeed. He said:

"My advice is that the Lord Chancellor should resist all proposals to dismantle his office . . . the fact that the Lord Chancellor is also a senior Minister is a particular advantage".

The Prime Minister made the changes without even considering such advice. He may well feel in retrospect that it would be better never to have started the process of abolishing such an important post; it has brought him nothing but trouble and hasty backtracking.

Clause 1 recognises the constitutional principle of the rule of law and the Lord Chancellor's role in that context, and that the clause itself need not be justiciable. However, the clause does not go far enough. The Bill does not recognise the twin principles of the rule of law and parliamentary sovereignty. It does not urge the Lord Chancellor to use his best endeavours to ensure respect for the rule of law, which is a key role for him to act with other Ministers and in Cabinet. The rule of the law is not explained in any detailed measure in our constitution, and we agree with the Government that to make it justiciable would give judges too wide a scope to determine our constitutional law.

At its simplest, "the rule of law" is used to denote that law rules, that all a Government's powers are derived from statute or the royal prerogative, and that individual rights cannot be infringed without the authority of one or other source of power. However, it goes further in asserting that where discretionary power is given to the Executive, it should not be arbitrary power, and that society is entitled to expect established principles of fairness and justice from its ruler.

Taking a wide interpretation of that principle, there are respectable arguments that certain provisions in anti-terrorist legislation could be regarded as infringing the rule of law, and provisions limiting the rights of terrorist suspects might be said to fall within that category. The Government do not accept that analysis, but the Lord Chancellor's role is to air such concerns in Cabinet, if only to explain why he does not agree.

The doctrine of the sovereignty of Parliament is a doctrine of the courts: Parliament is sovereign only because the courts say that it should be. Until the middle of the 18th century, common law judges generally held the view that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and now we all readily admit that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts, not of Parliament.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills 5:00 pm, 31st January 2005

In one way or another, I am listening to a rewriting of our constitution. Many of us say that the sovereignty of Parliament is a valid constitutional concept because it represents the sovereignty of the people, which is inalienable. My difficulty with my hon. Friend's argument is that we are discussing very big constitutional themes. I do not know how the rule of law is defined, who defines it, how it is a constitutional document and how we can safeguard it. Perhaps my hon. Friend will point out where the rule of law is satisfactorily defined in the Bill so that we, the people—let us use the language of constitutions—can determine whether the Bill is consonant with the rule of law.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

The answer might be that academics identify various categories of the rule of law, which cover everything from the simple statement that "the law rules", to examining issues involving arbitrary power and discretion. The term can be used very widely.

I agree with my hon. Friend Mr. Cash that a case exists for placing parliamentary sovereignty at the core of the definition of the rule of law and including it in clause 1. My method, new clause 8, involves recognising a separate principle concerning the sovereignty of Parliament in clause 1. Clause 1 is included in the Bill because of the proposed abolition of the role of the Lord Chancellor, and it defines exactly what his roles have been in the past, given that his current role is being changed. The original proposal was to abolish him completely, but we have made a little progress on that point.

New clause 8(2) would require the Lord Chancellor to

"use his best endeavours to ensure that the rule of law is respected" by Ministers other than himself, which is our understanding of what a Lord Chancellor does in Cabinet. If a Minister proposes a draft legislative measure that, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so, which is what new clause 8(2) would allow. That point should be made clear on the face of the Bill.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I return to the point that I made to Mr. Cash: can Mr. Heald think of an example of a Lord Chancellor in the present Administration or the previous Administration who has not discharged his functions according to clause 1(b)?

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

It is because we believe that the proud tradition of the role of Lord Chancellor is to uphold the principles of the rule of law that we are so anxious to have such a provision on respecting the rule of law added to the Bill.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

How can we possibly know? I presume that the Lord Chancellor's advice is given in confidence to the Cabinet. We will not know one way or the other. That is part of the reason why one wants to tickle out what these provisions mean.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

I agree that we want to add to the Bill that part of the Lord Chancellor's duty should be to speak up in Cabinet for the principle of the sovereignty of Parliament. Of course we do not know exactly what happens in Cabinet until the memoirs are written, and the 30-year rule no longer applies. It is my impression, however, with which I hope that my hon. Friend might agree, that successive Lord Chancellors—senior figures in their own right, legally qualified, and towards the end of their career—have been prepared to stand up for the independence of the judiciary, the rule of law and the important role of the sovereignty of our Parliament. We would like to preserve the Lord Chancellor's existing duties in respect of the rule of law, and to ensure that the change in the more general duties of the office of Lord Chancellor does not alter the important duty to bring to the attention of other members of the Government any proposed action that may offend against the rule of law.

Photo of Vera Baird Vera Baird Labour, Redcar

I follow what the hon. Gentleman is saying, but I am concerned about the way in which he has chosen to try to do it. First, if he accepts that the Lord Chancellor's existing constitutional role is to protect the rule of law, why is he concerned? Clause 1(b) expressly says that

"the Lord Chancellor's existing constitutional role in relation to that principle" must survive. He is therefore just repeating an existing provision. It concerns me that, in fact, his new clause 8 would erode that duty, because all that new clause 8(2) would require the Lord Chancellor to do is to

"use his best endeavours to ensure that the rule of law is respected".

New clause 8(1) separates the two, saying,

"Together with the sovereignty of Parliament, the rule of law shall continue to be a central principle", but requires the Lord Chancellor to protect only the second, not the first.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

That is exactly the point made by my hon. Friend the Member for Stone—that the rule of law comprises the sovereignty of Parliament and the courts, and that it is therefore wrong to describe the sovereignty of Parliament as separate from the rule of law. My view is that both are true. The sovereignty of Parliament is a separate principle, but it is on that that the most important parts of the rule of law are based—that the courts in this country implement laws passed by Parliament, and that the sovereignty of that Parliament is implicit in that principle. I fully accept that that is arguable. The key difference now is that for the first time we are seeking to set that out in statute.

Vera Baird says, as did the Lord Chancellor in the other place, that the provision that the existing constitutional role is not adversely affected is adequate. Given that part 1 of the Bill is designed to have a declaratory effect, however, we want to go one stage further and include the reference to respect and best endeavours. We feel that that takes the provision a little further and improves it.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

Is not this House at something of a disadvantage? I do not wish to make any disparaging or facetious comments about the Under-Secretary of State for Constitutional Affairs, Mr. Leslie, who is extremely diligent and tries extremely hard, but it is a great pity that a Cabinet Minister is not dealing with this issue. Is it not also a pity that, because the Attorney-General is not a Member of this House, and the Solicitor-General, a Law Officer of the Crown who is a Member of this House, is not present, we are at a disadvantage because of the way in which the Government are treating this House in that context?

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

I do not want the Lord Chancellor to end up in the House of Commons. I like the fact that he is in the House of Lords. We will debate that later. I am somewhat surprised that the Solicitor-General has not seen fit to come here today, but there are doubtless reasons for that.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

I want to deal with the issues raised by my hon. Friend the Member for Stone, who seeks to define the rule of law as including the sovereignty of the Queen in Parliament and of the courts. In my view, they are indeed part of the rule of law and are at the heart of the statement of the rule of law, which is that "law rules". He also seeks to clarify the law in an area of academic contention. He wants to establish whether the UK Parliament and courts are sovereign, so that Parliament can pass an Act that effectively disapplies the European Communities Act 1972 or the Human Rights Act 1998 on a case-by-case basis, given that such Acts were passed to recognise international obligations, and expressed themselves as affecting future obligations as well as past.

Section 2(1) of the 1972 Act incorporated all existing EC legislation into UK law and

"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties".

Section 2(4) of the 1972 Act provides that past or future laws shall be construed, and shall have effect, subject to the provisions of section 2. The effect is to give primacy to EU law—as it now is—in certain areas of competence. As was explained as early as 1967, in the White Paper entitled "Legal and Constitutional Implications of UK Membership of the European Communities":

"The Community law having direct internal effect is designed to take precedence over the domestic law of the Member States. From this it follows that the legislation of the Parliament of the United Kingdom giving effect to that law would have to do so in such a way as to override existing national law so far as inconsistent with it . . . It would also follow that within the fields occupied by the Community law, Parliament would have to refrain from passing fresh legislation inconsistent with that law as for the time being in force. This would not involve any constitutional innovation. Many of our treaty obligations already impose such restraints—for example, the Charter of the United Nations".

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

May I just finish this point?

This issue came into focus during the Factortame case, which concerned the UK's obligation under EC law to allow Spanish fishermen to fish in UK waters within prescribed quotas. The UK enacted laws in 1988 under which, to be entitled to fish UK waters, a vessel would have to register as British. Some 94 boat owners took the UK to court, claiming that those laws were incompatible with the relevant EC treaty and the common fisheries policy. Their case ultimately proved successful in the European Court, and UK law had to be changed.

However, the interesting point came when an application for interim relief was made, in the first instance, to the UK divisional court. The court granted relief, but the decision was overturned on appeal and the Court of Appeal's ruling was upheld in the House of Lords. When the matter came before the European Court, the UK argued that Community law did not oblige or enable a national court to grant interim relief suspending the application of a national measure. The European Court ruled that where a national court would have granted interim relief to protect directly effective Community law rights but for the national measure, it must set aside the national measure. The full effectiveness of Community law would be impaired, it said, if a jurisdictional rule in the law of a member state prevented its national courts from granting interim relief.

The House of Lords was under a Community law obligation to give effect to the European Court ruling, because it was automatically brought into English law by operation of section 2(1) of the 1972 Act. Since then, many have argued that if the law changing the fishing registration arrangements had expressly disapplied the 1972 Act, it would have been incumbent on UK courts to uphold the UK law, because of the sovereignty of Parliament.

There has also been debate about the extent to which the decision on interim jurisdiction would affect situations where a different jurisdictional rule is involved, and about the extent to which the sovereignty of Parliament might be affected. It is clear that the old rule that a new Act takes precedence over an old one, and that any inconsistency is resolved by the doctrine of implied repeal, has been modified by the 1972 Act and by the Human Rights Act. Express disapplication of these provisions would be required in order to make an effective change in the law, if such a change conflicted with EU law. My hon. Friend the Member for Stone asked whether even that would be enough, and whether, if Parliament expressly disapplied the 1972 Act in respect of a particular Act, that would be effective in UK courts.

Some argue that the European constitution takes this a step further, making citizens directly bound by the legal supremacy of Union institutions. My hon. Friend the Member for Stone has pursued these issues with Ministers, as has my hon. Friend Mr. Shepherd, and the answer to a written question reflects what they wished to establish. The Minister stated:

"The ultimate guarantee of parliamentary sovereignty lies in the power of Parliament to repeal all or any of the Acts which give effect to the EU treaties in this country. It is within Parliament's power to legislate contrary to the UK's treaty obligations. This of course includes legislation that might impact on the effective implementation of Article I-10(1)— that is, of the proposed European constitution. The Minister's reply continued:

"The result of so doing, however, would be to place the UK in breach of its treaty obligations." —[Hansard, 15 December 2003; Vol. 415, c. 732W.]

What my hon. Friend the Member for Stone seeks to add to the Bill would, in his view, place that principle of parliamentary sovereignty firmly on the face of the Bill. It seems hard for the Government to deny him. The Minister may say that that is unnecessary, but that argument might apply equally to clause 1 itself, yet the Government accept the necessity of the declaratory effect.

As the then Minister for Trade and Investment, who is now the Minister for Energy and E-Commerce, said in answer to a debate initiated by my hon. Friend on 24 March 2004:

"our position has been entirely clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations"—[Hansard, Westminster Hall, 24 March 2004; Vol. 419, c. 317WH.]

He went on to cite Lord Denning, who said in the case already mentioned, Macarthy's Ltd. v. Smith, that it is always within Parliament's power to legislate contrary to the UK's treaty obligations. The Minister went on to point out that this would cause a good deal of trouble. It would certainly lead to serious discussions within the EU, but the question before us is not whether to have such an argument, but whether we are able to pass such a law, if we choose to do so, in a way that is effective in the UK courts. I believe that we are entitled to do that. Ministers seem to agree, so there is no reason not to add the words contended for by my hon. Friend.

It is right to make it clear that the issue is of concern more widely than just to UK Conservatives. In both Germany and Denmark there is the belief that certain aspects of their constitutional law take precedence over EU law. That was asserted by the German constitutional court in the Maastricht judgment in 1994. It was hoped that there would be no conflict, but the judgment asserted the German court's right to disapply an inconsistent EU law. In Poland, senior academics argue that EU law has no primacy over the country's constitution.

The most recent statement of the law in this area in the UK came from Lord Justice Laws in the so-called metric martyrs case, Thoburn v. Sunderland city council. After describing a hierarchy of statutes and identifying the European Communities Act and the Human Rights Act as "constitutional statutes", he went on to say:

"Ordinary statutes may be impliedly repealed. Constitutional statutes may not."

That is controversial. He continued, less controversially:

"For the repeal of a constitutional Act or the abrogation of a fundamental right to be effective by statute, the Court would apply this test: is it shown that the legislature's actual—not imputed, constructive or presumed—intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible."

He stated that what is required are

"unambiguous words on the face of the later statute".

My hon. Friend wishes to have parliamentary sovereignty written into the Bill, and there is no reason not to do that. He may disagree with the EU more than some— probably including me—but the provision is not about an argument with the EU. It is about the powers of Parliament and the courts, and I believe it reflects the current state of the law.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons 5:15 pm, 31st January 2005

I shall be brief, as I am agog to hear how the Minister will respond to the interesting discussion between two Conservative Members, one on the Front Bench and one on the Back Bench. From what Mr. Heald said, I am not clear whether he prefers his new clause or the amendment tabled by Mr. Cash.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

I said the new clause and the amendment were not inconsistent. I hope to have a separate Division on new clause 8 in due course.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I understand that point, which is very interesting, but as I read it, the amendment and the new clause could not be included in the Bill together, so there is a potential conflict of interests.

I pay tribute to our briefing from the Select Committee on Constitutional Affairs on the Bill and on the amendment. I hope to see that innovation more often from Select Committees. My right hon. Friend Mr. Beith, the Chairman of that Committee, ensured that its third report of the 2004–05 Session set out an interesting and useful analysis of the way in which the Bill started its life in the House of Lords, referred to the concordat, to which much reference has been made—no doubt more will be made this evening—and included a helpful clause-by-clause comparison. The Minister may now be regretting that his colleagues in the other place decided to include clause 1, thus enabling us to have this sort of discussion. It might have been easier if it had been left out.

Nevertheless, we welcome the clause, and we want to be sure that it will be sufficient as it stands. That is surely what our business is. As a non-lawyer with some experience of the law as a recipient, I have always inclined to the view that the simpler the law can be, the less it can be misunderstood and misinterpreted. I start from the basis that the Bill as it stands, which is very simple and straightforward, is preferable to either of the alternatives that we are considering.

I understand the concern of the hon. Members for North-East Hertfordshire and for Stone about providing further definition and exploring issues of enforceability. I fear that I lost the drift—that is probably the right word—of the argument of the hon. Member for Stone. He said—I hope that I am quoting him correctly—that his amendment would ensure that there was a clear statement of the current position, but he then paused and said that he had a proviso. His comments about the proviso went on for two or three more minutes, so the clarity of the position that he was describing was rather lost. It was curious that he then stepped further into the future and sought to anticipate the effect of the European constitution, which is not even before the House yet. As I understood it, his position is that he is not in favour of it, so it was curious that he tried to anticipate it.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

Does the hon. Gentleman agree that the phrase "best endeavours" in new clause 8 would weaken the effect of clause 1(b)?

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I understand that point. The hon. Member for Stone was asked about the enforcement of the provision, given the fact that the Cabinet and its Committees sit in private. How could such provision ever be enforced? I think that it could be interpreted as weakening the Bill as it stands.

I am afraid that I am very much with Vera Baird, in that I do not understand the necessity of the further definition. If anything, it would dilute and reduce the impact of clause 1 as it stands. The most interesting point about the argument of the hon. Member for North-East Hertfordshire is that he is obviously edging towards a complete and comprehensive written constitution. That happens to be the position of my right hon. Friend the Member for Berwick-upon-Tweed, myself and our party. As far as I am aware, such a position does not represent the views of the Conservative party. Surely, a constitution is needed precisely to define and codify to avoid overlap, lacunae and turf wars. That is, after all, the basic argument for a European constitution, and it will be interesting to hear whether that argument will be put from the Conservative Front Bench.

Photo of Bill Cash Bill Cash Conservative, Stone

Will the hon. Gentleman give way?

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I am just about to conclude.

My point for the Minister is that I find it difficult to understand what would be added if the amendment or the new clause were included in the Bill, when as I see it, we already have a very clear statement of the rule of law. It seems to me that that is all we should be seeking to achieve.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

I support my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) in saying that the sovereignty of Parliament should be clearly recognised as an important principle in the Bill and in clause 1. I do not see how the Government can, in fairness, reject that plea, although I am sure that they will find ways of doing so that are unfair. In fairness, if they think that their Bill requires an assertion that the Lord Chancellor must uphold and work for the rule of law, it is surely important to recognise the fundamental principle of our legal system that all statute law emanates from the power of the people expressed through their Parliament.

As my hon. Friend Mr. Shepherd reminded us, power ultimately comes from the people, who entrust it for a period of years to their elected representatives until it returns to the people when a new Parliament has to be elected. It used to be a fundamental principle of our excellent British constitution, as recorded in a variety of documents over the years, that no Parliament could bind its successors. That principle is crucial if the people are to have power over their legislators and to be able to choose different legislators at the date of dissolution and subsequent election if the previous legislators have not suited their will and purposes. That is why some of us have been worried by the issue that bedevilled the early part of the discussion on this big Bill: whether European law can now effectively bind future Parliaments, and whether treaty law can do what statute law cannot do and thwart the will of the British people should they change their minds about things done in their name by previous Parliaments through the European Union.

Therefore, it is welcome to discover, as my hon. Friend the Member for North-East Hertfordshire pointed out with some extremely well chosen quotations, that the two Front Benches—the official Opposition and the Government—are united in upholding the view that, ultimately, the sovereignty of Parliament is still intact, that the powers of the European Union emanate from the European Communities Act 1972, and that what Parliament can create it can amend or remove. There is strong disagreement in our country about whether it would ever be wise or desirable to test that point by passing suitable legislation in this House to amend the 1972 Act, but it is welcome to know that the main interests in the House agree that that can be done legally under our system, in which the Queen in Parliament is sovereign. It would therefore be welcome if that principle were written clearly into this grand, declaratory Bill, which begins with the wide-ranging and high-flown clause that we are debating.

Another issue to which the Minister should respond is how far the request for, or requirement on, the Lord Chancellor goes to observe the rule of law as we understand and define it. That would not be difficult were the Lord Chancellor a happy inheritor of the tradition of our rule of law and common law, but it would be less comfortable for a Lord Chancellor who was a moderniser and reformer and who wanted to make fundamental changes in the way in which the rule of law is understood and enforced. For example, does the Minister believe that any Lord Chancellor could take any action that he or she liked as regards how future jury trials should be conducted, or whether juries should be involved? Under clause 1, can any Lord Chancellor take whatever view he or she wants to take on imprisonment without trial or without identifying an offence or charge, or does there come a point at which the Lord Chancellor is acting beyond his or her remit because the rule of law is defined by our common law and traditions, and by the many fine words and judgments that have gone before?

The debate is interesting and apposite and I look forward to assurances from the Minister that the intention is to create limits on how far a Lord Chancellor can go in wrecking, destroying or undermining the liberties and rights of subjects under the common law.

Photo of Bill Cash Bill Cash Conservative, Stone

Does my right hon. Friend acknowledge that had the Merchant Shipping Act 1988, which gave rise to the difficult decision in the Factortame case, started with the words, "Notwithstanding the European Communities Act 1972", as I suggested back in those days, we would not have got ourselves into this judicial mess as regards our internal constitutional position? Will my right hon. Friend note that, on 12 January, Professor Alan Dashwood stated that in the context of a Bill that began with the words, "Notwithstanding the European Communities Act 1972", whether

"there has been a shift of ground law or not with an unwritten constitution like we have, you can only wait and see how the judges would react to that Act of Parliament."

That is matter of concern, and it is why I have been pressing the point. Does he agree that we must pursue that?

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation 5:30 pm, 31st January 2005

I have already said that I fully agree with my hon. Friend and also my hon. Friend the Member for North-East Hertfordshire that it is a good idea to identify the sovereignty of Parliament as central in the first clause of such an important constitutional Bill. Should some future Parliament contain a majority that wished, for example, to disapply some Community law or change Community arrangements without a new treaty having been negotiated, it would be a prudent precaution to begin the legislation with an express repeal or amendment of the part of the 1972 Act that Parliament wished to alter. I am sure that the judges of our country would understand, under the rule of the sovereignty of Parliament, that it was good law that should be enforced.

Photo of Vera Baird Vera Baird Labour, Redcar

If the right hon. Gentleman wants to guarantee that the Lord Chancellor supports the sovereignty of Parliament above all else, why does he support new clause 8, which does not give the Lord Chancellor a duty to do that? It separates the rule of law from the sovereignty of Parliament and gives him a duty to support only the second and not the first, whereas clause 1 clearly gives the Lord Chancellor a duty to support both.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

Clause 1 does not expressly state that the sovereignty of Parliament is crucial. As I understand new clause 8, the principle of the sovereignty of Parliament would be above all others. Clause 1, as amended, would therefore bind not only the Lord Chancellor, but everyone else in the judicial process. That would be welcome. It is a suitable point at which to sit down in the hope that the Under-Secretary will rise soon to reassure us on those matters.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

The remarks of my hon. Friend Mr. Tyler about the Select Committee report were kind and much appreciated. I hope that it proves useful to hon. Members in identifying the issues that have not yet been resolved.

Considerable changes have been made to the Bill, many of which respond to issues that the Committee raised and were subsequently raised in the Lords. I am pleased about that, but the Bill has never appeared to me either to make, or purport to make, changes to the sovereignty of Parliament. Indeed, it does not purport to make changes in the rule of law. A question therefore arises about the necessity of the clause and any amendments to it.

I welcome clause 1 because it became clear in Committee and in the other place that there was much concern among the judiciary and more widely that the future Secretary of State for Constitutional Affairs—as he was then to be—would not have or recognise the same duty to assert the rule of law in Cabinet discussions as was previously assumed to be the case. That was based on a rather rosy view of what happened in previous Cabinets, especially if we look back to some earlier, very political Lord Chancellors.

More recently, we have had senior Lord Chancellors of different parties, of the sort that the Committee hoped we would get in future—people who had reached the end of their political career, were not looking for further office and did not have ambitions for other Cabinet posts. We believed that a model had been developed in which the Lord Chancellor upheld the rule of law. Perhaps an even more pressing reason for our support for that model was that the moment that the Lord Chancellor stopped sitting as a judge, it became inappropriate for him to take the judicial oath. Alternative provision was eventually included in the Bill, but the disappearance of his swearing the judicial oath was viewed as yet another way in which his commitment to the rule of law might be undermined.

Even in recent times, one can make speculative comparisons about how far different Lord Chancellors would impress on their colleagues the importance of the rule of law. I remember Lord Irvine publicly dressing down a Minister on the independence of the judiciary, but I challenged the current Lord Chancellor because I could not find an example of his doing the same. I made suggestions about when he might have done so, for example, when the then Home Secretary, addressing the Police Federation, said, "We want only judges who help us to do our job." That obviously seemed to him to be an entirely innocent statement, but to me and others it seemed to represent a contradiction of the principle that judges are there to reinforce the rule of law, and not to do what happens to be convenient for the Government. The presence of this provision in the Bill is therefore welcome, as it addresses precisely those concerns.

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

Before the right hon. Gentleman leaves that important point, does he agree that the ultimate supremacy of the judiciary is essential, because it is always open to an affected party to take a member of the Executive before the court on judicial review? That is why his remarks on this subject are so very important.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

That is so. Most people take the term "rule of law" to mean that nobody—including Governments and Ministers—is above the law. We see the rule of law being threatened in certain countries when people start to behave as though they are above the law. In Zimbabwe today, for example, we see the judiciary struggling to maintain the rule of law while the Executive are determined to ignore its actions or to override them in various ways. That is a classic example of the dangers that can result when those in power cease to recognise the rule of law. Such people often have at their disposal the physical means to contravene the rule of law, whatever the courts might do to insist that they recognise it.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

When lawyers, including our top lawyers, are presented with an Act of Parliament that abrogates what the right hon. Gentleman and I think of as the rule of law, they are bound to accept it. That is why a layman such as me needs the rule of law to be clarified and defined, and not simply through reference to that vague hinterland of Dicey or to judges' ruminations on the matter. The right hon. Gentleman was right to remind us of what the then Home Secretary said.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

There is a lot to be said for Dicey and his definitions in this field.

The trouble with placing a definition in statute is that it is inclined to narrow rather than to widen. The judiciary has a very good record of using to the maximum the breadth of statute law for the protection of the individual, and I would not want to undermine that by an excessively tight definition, or by a definition that seemed to point us in one direction rather than another. I fully understand, however, the various reasons that have been introduced in support of the amendment. It has been worth introducing them because they have opened up the opportunity for a debate on the issue. Some of the arguments will be able to be considered on another day and in another context, especially those relating to the supremacy of Parliament, which the Bill does not attempt or purport to change.

Photo of Bill Cash Bill Cash Conservative, Stone

Does the right hon. Gentleman accept that the issue at the heart of this debate is not the rule of law, but the rule of which law? In the context of the European debate, there are competing assertions as to which law is superior. When we talk about the rule of law, therefore, the necessity to get this right is dependent on the question that gives rise to it. In other words, we need to arrive at a definition that asserts the sovereignty of this Parliament, precisely because the European Court of Justice asserts that the constitution of Europe, or the existing treaties, have priority over our own laws, and, in the case of the constitution, over our constitutional arrangements in this Parliament as well.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

I understand the point that the hon. Gentleman is making. It is one that he has been determined to make on many occasions. However, this part of the Bill addresses the duty of the Lord Chancellor and asks whether he has the express duty to uphold the rule of law. It does not ask in what areas the rule of law presents dilemmas or problems relating to the state of the law, or to which part of the law has superiority. International law issues come into that question, and they are important issues. They are not, however, what this clause seeks to define. Perhaps we are getting back to the Gilbertian expression by a Lord Chancellor:

"The Law is the true embodiment of everything that's excellent . . . and I, my Lords, embody the Law."

That is quite a good description of the way in which Lord Chancellors of the time viewed the matter, but we have moved on since then.

The Bill needs to ensure that the person who holds the office that is, quite usefully, still going to be known as Lord Chancellor, despite its substantially changed character, should recognise that it is part of his duty to remind his fellow Cabinet Ministers of their obligation to the rule of law, and that they should not even appear to want to threaten or compromise it. He should have the authority of statute when he does so.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am very attracted to the arguments of Mr. Beith, the distinguished Chairman of the Speaker's Committee on the Electoral Commission. He addressed himself to what he took as a rough guide to what the rule of law is: no one is above the law. But the rule of law has to be more than that, does it not? Does it not have anything to do with the process of law or the nature of the law? We can all be equal under a tyranny that manufactures laws to imprison us. That is why some of us are very nervous about a Bill that begins with clause 1, "The rule of law". I ask the right hon. Gentleman this: is it the Dicey definition? Is it protected by the conventions that form it, or as judges have advanced it into the 21st century?

These are probing questions. I want to be given some of the answers, with the certainty that I expect from able and competent lawyers—a certainty that I do not have, as a mere representative of Aldridge-Brownhills. What constitutes this concept? We observe the judges seizing a principle of which, when I was a child, we had little cognisance: judicial review. This whole development is outside statute law. Do I object to that? Not necessarily. I puzzle over it sometimes, but I know that between some point in my youth and now the law has changed when it comes to how Governments are held to account.

I do not want to make a meal of it, but these are terribly deep and important principles that inform our freedoms and liberties. My hon. Friends on the Front Bench want to safeguard a concept of the rule of law, and, in all fairness, I do not doubt that the Government do as well. However, the Bill refers to

"the existing constitutional principle of the rule of law".

I return to my original question: what is that? No authority that is a constitutional authority states unchallenged, "This is the principle". We debate the concept and we argue about it. The intention of the Bill, and of clause 1 in particular, however, is to reassure us that the independence and the integrity of the judiciary are safeguarded.

I am struggling to decide whether the Bill is in fact more sinister than the Minister attractively suggested. Indeed, he suggested that it was not sinister at all. I do believe in the principle of the rule of law, but it is a Shepherd principle. Each of us probably has a principle of the rule of law, but as often as not it is half Dicey, half the development of judicial activism. It is how we think it ought to be if it is to secure our liberty and freedom. That is the difficulty with measures such as this, which touch on constitutional principles.

I am glad to observe that the Liberal Democrats have come in behind Shepherd and want a written constitution. That would set out such matters clearly. I know, however, that my hon. Friends on the Front Bench and my hon. Friend Mr. Cash are trying to establish a protection for us all. That is why we talk about the primacy of Parliament or, as I should like it to be called, the primacy of the people. In the end, all these Bills and Acts are constructed only through the authority of the people who send us here on our temporary mission as Members of Parliament.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons 5:45 pm, 31st January 2005

I strongly agree with my hon. Friend on his last point. He fairly made the point that the rule of law means a range of things to different people. My hon. Friend Mr. Cash is not seeking to define the whole of what the rule of law may mean. He is trying to home in on one aspect. I believe that defining what the rule of law should mean for this purpose is well worth doing.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I accept that, but we will come to clause 4 presently. Again, that which it directs judges to consider as sources of law is way beyond anything that we presently acknowledge as having direct effect in British law. That is why, when I think about what the rule of law means in the context of the wider Bill, I am not dismissive of the sovereignty of Parliament. I have no doubt that that is the most fundamental authority for this country and its constitution. However, that constitution is not enacted. It has been developed and accepted by the courts across a period of time. We could say that it is part of the rule of law, but we saw the assault on what a judge seemed to deem constitutional Acts. We are not sure in our own minds, and our courts are not sure, what constitutes a constitutional Act. Even when a judge mentions the special category of constitutional law—these are particular pieces of legislation or statute that we should look at very carefully—it is contradicted by others.

Therefore, there is no certainty as to what this means. I want all the protections for our traditional freedoms—the first in the continent of Europe. That is why the Bill is important. I accept the Government's arguments on that. I understand the purpose behind the Bill, some of which I have no difficulty with, but when we come to this clause and to clause 4, the significance of which I will not go into now, I am very diffident. Therefore, I will support the new clause and the amendment, which is a probing and interesting amendment that, as we all understand, has wider connotations than just the European Communities (Amendment) Act. Because of clause 4, it can touch on tribunals and a number of things, all of which are important. Therefore, I will support the amendment.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

These are mighty issues and I feel even more diffident than the good Shepherd, my hon. Friend the Member for Aldridge-Brownhills, in discussing them, but I shall try to join the discussion to this extent.

My hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) seek to amend clause 1. Clause 1 is fundamentally intellectually dishonest, because it says:

"This Act does not adversely affect", and it sets out what it does not adversely affect in subsections (a) and (b), but hanging like a ghost in the background is the implication that some other Act, either existing or, more likely, a future Act, may well do so.

The clause seems to fall into the category of an early-day motion set into legislation. In my view, Acts of Parliament should not set out wishes or declarations, but should deal with concrete issues. I am not convinced that

"This Act does not adversely affect . . . the Lord Chancellor's existing constitutional role" in relation to

"the existing constitutional principle of the rule of law", not least because it is difficult to define what the rule of law is. The Opposition side had an interesting exchange about that. I am doubtful that the Bill will not change—and change quite radically—the Lord Chancellor's existing constitutional role, so I am wholly sceptical about clause 1.

I am glad that my hon. Friends have spoken in support of their amending provisions, because they have enabled us to have a useful debate, but I am not sure that the two respective sets of arguments—both where they coincide and where they differ—answered the problems effectively.

Photo of Bill Cash Bill Cash Conservative, Stone

That happened because we were each seeking a solution to a problem that we viewed in common. Unfortunately, we did not come together to discuss the wording. Had we done so, we probably would have arrived at something slightly different on both counts. That does not alter the powerful reason for seeking to elucidate the deep questions that lie at the heart of the clause.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I do not know whether that is an explanation or an excuse, but it does not get us much further.

Photo of Bill Cash Bill Cash Conservative, Stone

It is a plea in mitigation.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am grateful to my hon. Friend for putting forward that plea.

I believe that the strength of our constitution depends on the mutual respect and understanding of the powers and duties pertaining to each part of our constitution. There seems to me to be a growing gap between parliamentarians and the law, and between practitioners and academics on the legal side, and they increasingly seem to inhabit a different country. We no longer speak the same language or seem able to communicate in terms of mutual understanding. That is why we often hear speeches in the House that attack the judgments of judges and also why, thank goodness, we hear Lord Chancellors, as in the case of Lord Irvine, criticising the Home Secretary for intemperate remarks about the judiciary. If Lord Irvine did not understand the finer art of diplomacy, he certainly understood the difference between these two aspects of the constitution—the respective roles of the Executive and the judiciary. Such understanding seems to be dying rapidly and it is cured neither by clause 1 nor, I fear, by the amendment and new clause that my hon. Friends have proposed. That worries me.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Does my hon. and learned Friend accept that one advantage of new clause 8 is that it places a duty on the Lord Chancellor to do something specific—namely, to

"use his best endeavours to ensure that the rule of law is respected"— and, I would add in parenthesis, to do so in the Cabinet? At least the conscience role of the Lord Chancellor is clearly set out there beyond peradventure. Is that not something worth doing?

Photo of Edward Garnier Edward Garnier Conservative, Harborough

It might be if I thought that it would be effective, but how is it to be enforced? How do I know, as a citizen or even as a Member of Parliament, whether the Lord Chancellor is using his best endeavours in the Cabinet to ensure that the rule of law is respected? I do not know. I have to trust the Lord Chancellor to do so. I can trust the Lord Chancellor if I respect both the man or woman who occupies that office and the office itself, but the problem is that the Bill undermines the office. The Government want less authoritative and respected holders of that office, so my faith in the Lord Chancellor's ability to ensure that the rule of law and the different roles of the Executive and the judiciary are respected is diminished to that extent.

When the late Lord Hailsham of St. Marylebone was Lord Chancellor, he said that it was his duty to defend the independence of the judiciary "to his final breath". He was not interested in "best endeavours". Although I understand that that expression is used day in, day out in court undertakings and consent orders, it is not what I expect to find in an Act of Parliament describing the duties of a Lord Chancellor. It sounds a bit wimpish and I view it as utterly unsuitable for an Act of Parliament. I am not even convinced that, if the phrase were to be included in the Bill, it would be enforceable. It would not, so why are we writing yet another early-day motion sort of provision into a piece of legislation?

Photo of Bill Cash Bill Cash Conservative, Stone

I would like to help my hon. and learned Friend in respect of his concern about the origin of the definitions and the amendment's attempts to deal with the definition of the rule of law. I refer him and the House to the case of X v. Morgan-Grampian of 1991 and the judgment of Lord Bridge. For practical purposes, I modelled my wording precisely on what he said, although I adjusted it slightly to take account of the European dimension of the problem. I hope that it helps my hon. and learned Friend to know that my amendment was based on the judgment of a very senior Law Lord.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I have no doubt at all that my hon. Friend spent a considerable time studying law reports and legal textbooks. I am also sure that the expressions used in his amendment are well sourced, in so far as they emanate from eminent judges. What I am concerned about, however, are the practical consequences of placing his provisions into an Act of Parliament. I am worried that playing the Government's game by amending the Bill, rather than striking out clause 1 entirely, might be falling into the trap that the Government have set for us.

The rule of law will not be protected one bit more by clause 1—still less, I am afraid, by new clause 8 or amendment No. 364. I understand all the arguments advanced by my hon. Friend the Member for Stone, in particular that our government and law-making systems have been internationalised over the past 20, 30 or 40 years. He and I have fears about further internationalisation of our domestic government system in the forthcoming year. I also understand that, as that happens, competition for influence and the demands of others to influence us will grow.

That is a real concern for my hon. Friend, for myself and, I hope, for every Member in the House. We face a vast and, in many ways, unwelcome cultural change in respect of how this country is run. Power is seeping away from this Chamber and this Parliament, as is the ability of our courts to uphold the rule of law, whether it be the common law as revealed by the courts or statute law as interpreted by the courts. All that is seeping away to other places. As both Members of the House and citizens of this country, we need to be wary of that, to debate it and to do our best to protect against it.

What really concerns me is that new clause 8, amendment No. 364 and clause 1 amount to nothing more than a lot of writing. They have enabled us to conduct this interesting discussion, but they do not protect our constituents or underpin the office of the Lord Chancellor, which the Bill as a whole fundamentally destroys.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

The Government are and remain strongly committed to the principle of the rule of law. Both sides of the debate so far agree that the Lord Chancellor has and will continue to have a vital role in ensuring that the rule of law is upheld. In my view, however, we must be careful not inadvertently to disturb other crucial arrangements of our constitution in the process of framing statute law. The issue of how best to make provision for the rule of law in the Bill was extensively debated in the other place, with various amendments tabled and discussed. There, and to a certain extent in our debate today, two points have been commonly agreed: first, the Lord Chancellor has always had a role connected to the rule of law that we would not wish to lose or diminish; and, secondly, the duty of the Lord Chancellor is in general political, rather than a duty to be enforced in the courts. Clause 1 meets both those concerns by acknowledging that the Lord Chancellor has a duty in respect of the rule of law and that that duty is not cognisable as a matter of law.

Clause 1 preserves and reinforces the status of the rule of law as a principle of the constitution—uniquely, incidentally, in statutory language in this country—and is thus a powerful statement of our commitment to that principle. I think that Mr. Tyler agreed with that point. It will ensure that the reformed office of Lord Chancellor will continue to have deliberations informed by that principle in the same way as the current office of Lord Chancellor, but in a manner that will not have wider or unintended effects.

I wish to address the arguments surrounding new clause 8 and amendment No. 364. New clause 8 is almost identical to a provision moved and subsequently withdrawn by the Opposition on Report in the House of Lords. The Government oppose it for broadly the same reasons as we outlined at that time. Including the question of parliamentary sovereignty in the same clause as the rule of law raises difficult questions about the relationship between those two principles, and that between them and other principles that are not mentioned in the Bill, such as collective responsibility, ministerial accountability to Parliament and the proper scope of judicial review. That problem is exacerbated by the reference in new clause 8 to the rule of law being a "central principle", which tends to imply that some sort of ranking of different constitutional principles is occurring.

Additionally, we, like Mr. Garnier, are worried about the precise meaning of the phrase "best endeavours" in the new clause, and concerned not only about how the Lord Chancellor's best endeavours might be measured, but about how they might interact with other constitutional conventions, such as the Lord Chancellor's role as a Cabinet Minister subject to normal collective responsibilities.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons 6:00 pm, 31st January 2005

Of course that is deliberate. Does the Minister accept that the rule of law is an overarching principle that comprises the various other points that he raised?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

We are in danger of becoming a theoretical academic institution instead of focusing precisely on the provisions that should be included in the Bill. Clause 1 says that nothing in the Bill will adversely affect the rule of law, although I understand that there are different interpretations and definitions of that. When I respond to the points made by Mr. Cash, I shall explain why it would be neither helpful nor useful to go into definitions of the rule of law, not least for the reasons outlined by Mr. Beith, who said that statute tends to narrow definitions rather than widening them usefully.

Subsection (2) of new clause 8 places an emphasis on ensuring respect for the rule of law. That could be taken as implying that the Lord Chancellor has a current duty to enforce the law against others, but that has never been his responsibility. Furthermore, there is some confusion about the meaning of subsection (3) of new clause 8. For example, would it mean that no judicial remedy would lie against the Lord Chancellor for a breach of duty if it did not lie there before? Could a court henceforth take the existence of a duty into account when deciding a question before it, and if so, how? Although I would not wish to pick too many holes in the drafting of the provision, we would be embarking on difficult territory if we started to set different worthy constitutional principles alongside each other or rank them in such a manner that they became judicially enforceable in different ways.

Subsection (3) of new clause 8 implies that the Lord Chancellor might have existing duties in relation to the rule of law that are currently enforceable via judicial remedy, but we do not agree with that proposition. There are specific duties enforceable on Ministers that could be said to be part of the rule of law, such as those under the Human Rights Act 1998, but there are no duties in relation to the rule of law as a whole.

Photo of Bill Cash Bill Cash Conservative, Stone

Is not the Minister somewhat hoist by his own petard? The problem that he is describing arises due to the fact that the Government have taken all the conventions, rules and assumptions that the courts have developed for centuries and attempted to compress them into the Bill, especially into clause 1. They have thus created the problem. We did not want to have to define the rule of law in itself because we thought that it was already well established. The Government have created a problem by attempting to put that in statute, which will be subject to administrative review.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

The inclusion of the clause was not wholly an Executive-determined move. It was the product of much debate and extensive discussion in the other place. In fact, I am glad to say that the Liberal Democrats, who still support clause 1, recognised that the wording of the clause was broadly adequate because it confined itself to the Bill and stated that nothing in the Bill adversely affected the established rule of law. The shadow Lord Chancellor, Lord Kingsland, reasonably and decently withdrew the amendment that he moved in the other place. He said that the debate was

"a good example of constructive thinking between the Government, the Liberal Democrats and ourselves. We are entirely content with the outcome."—[Hansard, House of Lords, 20 December 2004; Vol. 667, c. 1540.]

What a shame that Mr. Heald is taking a slight step back from the more rational approach of his shadow ministerial colleagues in the other place.

Amendment No. 364 would define parliamentary sovereignty as an aspect of the rule of law. As I said, we know that the rule of law is a complex principle and that many eminent legal minds and constitutional thinkers have failed to agree precisely what it entails and where it begins and ends. That is why I agree with the right hon. Member for Berwick-upon-Tweed, the Chairman of the Constitutional Affairs Committee, that including a definition of it in the Bill would be not only unnecessary, but perhaps a little dangerous.

I cannot agree that even the apparently simple definition in the amendment is either adequate or sufficient. Even if we were to agree that a definition of the rule of law was desirable in statute, it is debatable as to whether parliamentary sovereignty would be referred to within that definition or set out separately as a free-standing principle. Again, the problem is that the amendment tries to bring the two principles together without explaining the relationship between them. When the matter was debated in the other place, it was accepted that picking out specific aspects could lead to the undesirable listing of differently ranked constitutional principles.

Photo of Bill Cash Bill Cash Conservative, Stone

On the ranking of principles, does the Minister deny that there is uncertainty in judicial and academic circles about the question that I put to Mr. Beith on competing claims as to which law is superior? When Professor Alan Dashwood, the professor of European law at Cambridge, gave evidence to the European Scrutiny Committee, he made it clear that it is down to judges to decide that. If that is the case, it is most unsatisfactory from the point of view of asserting parliamentary sovereignty—I understand that the Government now agree with me on that.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I have said it before and I shall say it again: I see parliamentary sovereignty as absolutely prime in our constitutional settlement. I am slightly loth to embark on a discussion with the hon. Gentleman about treaties and how they interact with, or impinge upon, parliamentary sovereignty; suffice it to say that I do not think that anything in the Bill undermines parliamentary sovereignty. On the contrary, the Bill helps to enhance our constitutional settlement by making the different functions of the legislature, the judiciary and the Executive clearer. For those reasons, and for the reasons that I gave in comments on both the amendment and new clause 8, it would not be wise to include those provisions.

Clause 1 adequately and judiciously hits the mark in helping to placate those who may feel that in some way the change in the office of Lord Chancellor is diminishing that officeholder's role, and in defending the existing principle of the rule of law. That is why clause 1 is in the Bill and I urge hon. Members to withdraw their amendments.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

After hearing the Minister's comments, I remain convinced that not only the rule of law but the sovereignty of Parliament should be referred to in the first declaratory clause—clause 1. In due course—it will be much later on—I shall want a separate vote on new clause 8.

The amendment proposed by my hon. Friend Mr. Cash can be divided on immediately, so if he wants to press the matter I shall support him. The sovereignty of Parliament and the rule of law should be defined in the Bill, and my hon. Friend is right to say that the sovereignty of Parliament is the basis of the rule of law, and to define the rule of law as involving in part—he uses the words "in particular"—the sovereignty of Parliament and the courts.

Photo of Bill Cash Bill Cash Conservative, Stone

It is unnecessary to add to what I have said already. I certainly want to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 127, Noes 283.

Division number 56

See full list of votes (From The Public Whip)

Question accordingly negatived.

Clause 1 ordered to stand part of the Bill.