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Clause 2 — Addition to list of treaties

Part of Orders of the Day – in the House of Commons at 9:15 pm on 5th February 2008.

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Photo of Bill Cash Bill Cash Conservative, Stone 9:15 pm, 5th February 2008

As I voted against it more often than any other Member of Parliament, my answer is yes, I certainly do. It was a fundamental and dreadful mistake. I also happen to believe that we have moved on since then and that the Conservative party is united in opposition to the Lisbon treaty. As far as I am concerned, everything is moving extremely well in the right direction. The hon. Gentleman will find that the problems he has just identified in this treaty—he did that by referring to the Maastricht treaty, which is part of it—will hit his party very hard on the head in due course. However, we will leave that one until later.

In the United Kingdom courts, case law is extremely important in respect of whether we are able to exclude ourselves, as the Government claim they want us to be able to do, from the charter of fundamental rights. There are Labour Members who would like the charter to apply, but we Conservatives do not want it to apply to the United Kingdom. I should like to touch on a number of important cases that need to be taken into account. The first is Macarthys Ltd v. Smith, on which the famous Lord Denning sat. He said:

"Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act—with the intention of repudiating the Treaty or any provision in it—or intentionally of acting inconsistently with it—and says so in express terms—then I should have thought that it would be the duty of our courts to follow the statute of our Parliament."

That could not be clearer. According to that case and that of Garland v. British Rail Engineering, which were both House of Lords cases, and the case of the metric martyrs—Thoburn v. Sunderland city council—the only way we could exclude ourselves from the application of the law of the European Union, which would include this charter on the basis of the analysis of the European Scrutiny Committee and my own and many other legal authorities' assertions and judgments, would be by putting in a provision with the phrase:

"Notwithstanding...the European Communities Act 1972".

I understand the problem that some people have with the fact that those words appear to invade the acquis communautaire, but I also know that we are committed to the idea of maintaining economic competitiveness, and we have statements to the effect that we will exclude ourselves, once again, from the provisions generally described as the social chapter or the social charter. The bottom line is that there are many provisions, including the working time directive, from which we would want to exclude the United Kingdom in our vital national interests.

It is important to bear in mind the fact that there is only one way of achieving this, on all the analyses that have ever been put forward with any serious purpose. In the famous Factortame case, we got stuck, in relation to the Merchant Shipping Act 1988, by not including the words:

"Notwithstanding...the European Communities Act 1972".

As Lord Bridge said in his judgment, the British Government decided in 1972 that they would agree voluntarily to accept the arrangements for the European Union under sections 2 and 3 of the European Communities Act 1972, and therefore, because they had agreed to it voluntarily, unless and until they were either to repeal or amend it, it was for all practical purposes the duty of the senior court in the United Kingdom, the House of Lords, to strike down that Act. So in the pursuance of a European Union policy and a judgment of the European Court of Justice, they struck down an Act of Parliament that had been passed by this House. That is a very serious matter. If we and the Government were properly and truly united on not wanting the charter of fundamental rights to apply to the United Kingdom, we would have to apply the same formula in order to achieve it.

We have reached a very important moment. We have an opportunity to take the steps, without weasel words and by being direct, to sort this matter out as the Bill progresses. We have this stage now and a further stage to come, and the House of Lords in due course. However, there is a problem, which I do not want to exaggerate but just to mention. I hope that the European Scrutiny Committee in the House of Lords—I say this with great respect to some very eminent people—in no way ends up, in the report that is coming out quite soon, disagreeing with what the European Scrutiny Committee has said in the House of Commons. I could go into this at greater length, but my concerns are considerable. There is by convention in this House a doctrine of comity, and it would be a great shame if we were to find that a serious disagreement emerged on the application of the principle that I have just enunciated.

All the material dealt with by other Members in the earlier debate about the way in which the European Scrutiny Committee handled the matter so expertly boils down to this matter, which is why it is essential that we remove the application of the charter by the effective words in my new clause. The conclusion of the European Scrutiny report states:

"It is clear that the Government accepts that the Charter will be legally binding, and it has stated that the Protocol is not an opt-out. Since the Protocol is to operate subject to the UK's obligations under the Treaties, it still seems"— we have been through this before—

"doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter. If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK's other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation."

The report goes on to say:

"In our view, the only way of ensuring that the Charter does not affect UK law in any way is to make clear, as we have already suggested, that the Protocol takes effect 'notwithstanding the Treaties or Union law generally'."

It then says that that has been done in the context of the acquisition of property in Denmark and in respect of the Irish constitution, but

"it has not been made in respect of the Charter."

The Government, therefore, stand condemned for not doing their job properly. In reality, the only way in which the Government can achieve their objectives of excluding this charter from the law of the United Kingdom is by adopting the wording in my new clause 6. It says, in a nutshell, that notwithstanding the European Communities Act 1972, nothing in the charter shall have effect in UK law, and it effectively also says that that provision should be binding on our judiciary. I say that because I believe absolutely and implicitly in this House. The only way we can deal with the essential question of maintaining its supremacy in relation to the charter, let alone the national obligations that would arise later, would be by doing what I suggest. As a final point, during the course of discussion, we may be able to find a means of wrapping up all my points on the way the treaty operates in relation to the UK. This is a hugely important issue. We are at a watershed—a point of no return. This is the Rubicon for the United Kingdom.

I have not quite made up my mind what I am going to do at this juncture. If I had the privilege of being able to move my new clause, I would do so. I am conscious of the fact that these are hugely important questions, and I look to those on my Front Bench to consider them because I have no faith in new clause 12. We may be able to come to some understanding about that in due course, but at this juncture the most important thing is that we retain the supremacy of this Parliament not only over national parliamentary matters and the Bill of Rights, but over the charter of fundamental rights. We should do something about that definitively during the course of these proceedings.