Clause 18 — Status of EU law dependent on continuing statutory basis

european union bill (programme) (No. 3) – in the House of Commons at 7:15 pm on 11th July 2011.

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Photo of David Lidington David Lidington The Minister for Europe 7:15 pm, 11th July 2011

I beg to move Government amendment (a) to Lords amendment 14.

Photo of Dawn Primarolo Dawn Primarolo Second Deputy Chairman of Ways and Means

With this it will be convenient to discuss Government amendment (b).

Photo of David Lidington David Lidington The Minister for Europe

I should like first to recognise that the issue we are debating is, to an extent, an issue of detail that has aroused some fairly intensive debate, involving some extremely experienced and high-powered lawyers. It is not an issue related to the rationale for clause 18 as a whole, and I welcome the acceptance by the House of Lords of the rationale for a provision of this nature. Indeed, the author of Lords amendment 14, Lord Mackay of Clashfern, said when he presented his amendment on Report in the other place that there was very little between his position and that of the Government on the point of principle, saying:

“It is important that this declaratory measure”— that is, clause 18—

“should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so.”—[Hansard, House of Lords, 15 June 2011; Vol. 728, c. 790.]

However, noble Lords who voted in support of Lords amendment 14 took the view that the European Communities Act 1972 is the only route by which EU law takes effect in the United Kingdom, and that all the references to directly effective or applicable EU law in other Acts are linked to that Act. Lords amendment 14 therefore amends clause 18 to refer specifically to the European Communities Act 1972, rather than to the wider reference point of “an Act of Parliament”, in order to affirm that this is the sole route by which directly effective and directly applicable EU law takes effect in the UK.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I rather suspect that my right hon. Friend expected that I would rise at about this point. Very quickly, the European Communities Act 1972 might be the Act of Parliament by virtue of which we voluntarily entered into the acceptance of European law—as it has accumulated, like a tsunami, since 1972, both widening and deepening—but does he not agree that the crucial words are those of Lord Bridge in the Factortame case, who said that we voluntarily did that? Therefore, the special significance of the 1972 Act has to be tempered by the fact that it was what Parliament decided at that time. That is the crucial question to which we shall turn shortly.

Photo of David Lidington David Lidington The Minister for Europe

I agree with my hon. Friend, and I am sure he will recall the debate on these matters on Second Reading and particularly on the first day in Committee when we spent an entire day debating clause 18. He will also recall—it is clear from the Hansard—that I made it clear on behalf of the Government that the European Communities Act 1972 had effect in this country, so European law had effect here insofar as it stemmed from that piece of legislation, because Parliament had willed that that should be the case. If a future Parliament were to decide to repeal that Act, it would be perfectly within that Parliament’s power so to do, although my hon. Friend would be the first to appreciate that there would be immediate consequences for the UK’s treaty obligations. There would be a political crisis at that point. We debated that important issue of principle for a day in Committee, as I said, but I want to try to focus on the Lords amendments now.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 7:30 pm, 11th July 2011

Indeed. That is precisely why my right hon. Friend knows I must move on to ask him whether he accepts that the most important thing to avoid in the context of the assertions of certain members of the Supreme Court—criticised by the late Lord Bingham in severe terms—to the effect that Parliament has only a qualified sovereignty and that the ultimate authority effectively rests with them. It is precisely for that reason that we should be extremely anxious to ensure that no words are imported into this clause, as the Bill leaves this House and will finally be enacted, that would in any way allow the Supreme Court to move in on that territory and claim ultimate authority.

Photo of Dawn Primarolo Dawn Primarolo Second Deputy Chairman of Ways and Means

Order. I have been generous to Mr Cash as the Chairman of the European Scrutiny Committee, but his interventions are getting very long. I realise that these are important points, but he is always able to catch my eye if he wants to expand on them.

Photo of David Lidington David Lidington The Minister for Europe

I make two points to my hon. Friend. First, the only reason why the Supreme Court has power to adjudicate here on European Union matters is because Parliament has provided for directly effective and directly applicable EU law to have effect in the United Kingdom legal order by virtue of passing statutes that give European law that direct effect and application here. Secondly, as I think my hon. Friend knows—he is being a bit mischievous—he is trying to tempt me again on to a much broader issue, which is the important philosophical question of whether ultimate legislative supremacy lies with Parliament or whether parliamentary sovereignty is a construct of the common law controlled by judges. Speaking as an elected parliamentarian, I am quite clear and argue quite naturally that Parliament as the elected limb of body politic must have the ultimate say, but in making that case we are entering into a philosophical debate that goes way beyond the parameters of the European Union Bill, let alone Lords amendment 14.

Let me return to the Lords amendment. I am mindful of the arguments advanced by Lord Mackay of Clashfern and his supporters in the House of Lords, and I greatly appreciate their legal expertise. We considered Lord Mackay’s arguments very carefully both before the debate in the other place and following the Lords acceptance of the amendment. I sought further legal advice on this point, and the Government’s view remains that although the European Communities Act 1972 is indeed the principal means by which directly effective or directly applicable EU law takes effect in the UK, a number of other Acts of Parliament also give effect to EU law independently of the 1972 Act. For example, provisions of the Scotland Act 1998, of the Government of Wales Act 2006 and of the Northern Ireland Act 1998 put Ministers from the devolved Administrations under an obligation to act in accordance with EU law. Some of those settlements define EU obligations in a manner similar to the language used in section 2(1) of the 1972 Act—but, significantly, they do so not by reference to that Act.

The Government are therefore concerned that, were this House to agree with the Lords amendment as it stands, it could create the risk that the courts might interpret this clause as restricting the ability of legislation other than the 1972 Act to incorporate directly applicable or directly effective EU law into UK law. That, in turn, could ultimately mean that clause 18 could be interpreted as being more than declaratory, which would rather undermine what we are trying to do with this Bill. This would not, in our view, reflect the law accurately, and so we seek to disagree with the Lords amendment as currently framed.

In that sense, I agree entirely with the arguments put forward by my hon. Friends the Members for Stone (Mr Cash) and for Aldridge-Brownhills (Mr Shepherd), but I also recognise Lord Mackay’s point that the 1972 Act is the primary conduit for directly effective and directly applicable EU law to take effect in the United Kingdom. In recognition of this concern, the Government propose a change of wording to the Lords amendment that would retain the reference to the European Communities Act 1972 but, importantly, also refer to the existence of other Acts of Parliament that also give effect to EU law.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

I understand the right hon. Gentleman’s point and I have sympathy with his argument. Crucial to the argument, it seems to me, are the words

“by virtue of an Act of Parliament”.

What is the difference between putting those words at the end rather than at the start of the clause, where they were initially?

Photo of David Lidington David Lidington The Minister for Europe

I decided to include the words on the basis of the best legal advice available to me across Government at the time. When preparing the Bill for introduction into this House, I examined the wording and the question of whether a reference to the 1972 Act alone would be appropriate. I was given very clear legal advice that, because of the other statutes that make reference to the application of EU law, a simple reference to the 1972 legislation would not suffice. That explains the original wording of the Bill that came before the House of Commons.

What we have sought to do in framing our amendments to the Lords amendment is to recognise the view that the other place took that clause 18 should incorporate language that recognises the particular importance of the 1972 legislation. We see no reason why we should not amend the clause to make a specific reference to the 1972 Act so long as the clause also makes reference to those other Acts that give effect to EU law. This reflects the Government’s consistent position that other Acts of Parliament— independently of the European Communities Act 1972—might also allow for the incorporation of directly effective and directly applicable EU law into the UK legal order.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I still do not understand what was wrong with the Government’s original drafting.

Photo of David Lidington David Lidington The Minister for Europe

We believe that the original drafting met the tests that we had set to implement our policy of having a declaratory clause. What we are trying to do is to express through Government amendments the point made in the House of Lords that the 1972 legislation is of particular importance, while preserving the point of principle that we believe was incorporated in the original language as debated by the House of Commons.

Photo of David Lidington David Lidington The Minister for Europe

I want to make some progress.

It is not only the devolution legislation that mentions European Union law. The Company Directors Disqualification Act 1986, the Chiropractors Act 1994 and the Competition Act 1998 are further examples of legislation that allows European Union law to have direct effect in this country. Section 9A of the Company Directors Disqualification Act requires the United Kingdom to make a disqualification order against a person in certain circumstances, including circumstances in which an undertaking commits a breach of competition law under either article 81 or article 82 of the EC treaty—now articles 101 and 102 of the treaty on the functioning of the European Union. That Act refers directly to the treaty provisions without referring to the 1972 Act.

The amendment accepted by the other place removed the reference that makes it explicit that only by virtue of such Acts does directly effective and directly applicable EU law take effect in this country. Removing that reference leaves open the possibility of arguments that directly effective and directly applicable EU law could enter our law by other means, thus undermining the rationale behind the clause. The amendments that the Government propose seek to restore that important qualification, and to remove any doubt about whether directly effective or applicable EU law could enter United Kingdom law by other means.

Photo of David Lidington David Lidington The Minister for Europe

We welcome the acceptance in the House of Lords of the principle of clause 18, and recognise the concerns raised by colleagues there about the formulation of the clause. We believe that our amendments will both meet the concerns expressed by the proposers of the amendment and ensure that the provision reflects the law accurately. I therefore urge Members in all parts of the House to support them.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I am sorry that the Minister deemed it unnecessary, or undesirable, to accept my intervention, but that does not prevent me from making my point.

As the Minister will recall, it was the clear view of the European Scrutiny Committee that clause 18 was unnecessary. I am glad to say that a conversation in which I engaged today with one of my—let us call him—long-standing contestants in matters European, Lord Howe of Aberavon, confirmed that he shared our view. I have great respect for his legal knowledge, and I am delighted that we have achieved such a degree of understanding.

The Government are embarking on what is, in matters constitutional, an extremely dangerous path to tread: a primrose path that could lead to disaster. I know that there was a great deal of detailed discussion—I hear of these things—with Lord MacKay of Clashfern, who, after all, used to be Lord Chancellor, and indeed was Lord Chancellor at the time of the Maastricht treaty. I remember well, as I am sure he does, that the whole business of European government was conceded, to our deep regret; hence the rebellion which I had the pleasure to lead.

The Government appear to have been caught on the horns of a dilemma, and I think that they should have dealt with that in a different way. On one hand they are confronted with the European Scrutiny Committee, the expert legal advice that it has received, the further consideration that it has given to these questions throughout the intervening period, and its conclusion that clause 18 is unnecessary and undesirable. On the other hand—the other horn of the dilemma—is the view of Lord MacKay of Clashfern that the amendment is merely declaratory.

Unfortunately, in taking the line of least resistance—which, I am afraid, is their hallmark in matters European—the Government have fallen between two stools, and impaled themselves on the horns of the dilemma. I think that Members should feel impelled, as I do—for very sound reasons, which I shall now explain—to vote against the Government’s amendments and echo the concern expressed by the European Scrutiny Committee, which was supported by powerful advice.

As I have said, our Committee took a great deal of evidence from some very distinguished constitutional and legal experts. It is all on the record, and we need not go into the detail—what we need to discuss is what has happened since then—but I will say that, as Chairman of the Committee, I ensured that the evidence was evenly balanced. We weighed up all the evidence from the greatest experts who could possibly express a view on the subject, and reached conclusions that were supported by the majority of that evidence.

The Committee took the view that the principle of parliamentary supremacy should not be declared in statute, and that using the words

“It is only by virtue of an Act of Parliament that” in a statutory provision such as clause 18 is tantamount to stating that there shall be parliamentary supremacy. However, the very stating of that undermines the central premise, which is that it does not need to be stated, and the danger of stating it is that, ultimately, the Supreme Court will be allowed into this sacrosanct arena.

We are not talking about some technicality; we are talking about the very reasons for the existence of this House of Commons. Law is passed on the basis of views that are taken in a freely elected democratic assembly, which themselves refer to the decisions made by the electors in a general election. The issue of parliamentary sovereignty in the context of the European Union is that ever since Maastricht, and to some extent before it, decisions made, for example, by majority vote have often proved inimical to policies espoused by elements of the Conservative party, and indeed by our manifesto.

One simple example is the repatriation of powers. The Government are faced with a conflict. In December 2005, when the Conservatives were in opposition, the present Prime Minister said that there should be a repatriation of social and employment legislation. Both Back Benchers and those now in the Government—including the Minister for Europe—opposed the Lisbon treaty in every respect. For the first time since 1972, the party was totally united. Now we find ourselves in the difficult position of being confronted with amendments that would allow an infringement of sovereignty, subject to final interpretation by the courts. The reversal of the hierarchy of norms that parliamentary supremacy implies is itself put at risk by the wording that the Government have chosen in their attempt to balance the views of Lord Mackay of Clashfern and the European Scrutiny Committee. The Government have chosen the easy way out, but it is not going to be easy—or, indeed, of any value whatever. It is extremely damaging to the national interest and the constitutional status of this House of Parliament. It may seem to be a few words, but unfortunately this issue has profound consequences.

The debate in the House of Lords could be said to have shown that a legitimate confusion can arise from enshrining in statute an unnecessary declaratory statement. To quote a former first parliamentary counsel’s comment: “unnecessary words turn septic.” Unnecessary words do not turn Eurosceptic; rather, they turn septic. That is what first parliamentary counsel said and, unfortunately, that is what both the Government’s amendment to the amendment of Lord Mackay of Clashfern and his amendment itself achieve. They create a kind of septicaemia in the adjudication of matters of sovereignty, and will give the courts the purchase that was originally implied in the explanatory notes, which referred to the common law principle. We went into this matter both earlier in the debate and in our report. When the Bill went to the House of Lords, the Government took the infamous reference to the “common principle” out of their explanatory notes—I give them credit for having listened to us on that. They did so because they knew of the dangers inherent in respect of the courts, and certain members of the Supreme Court who have an increasing tendency to make certain comments, as expressed in the Jackson case and Lord Bingham’s criticism, by name, of the judges involved. He was extremely upset and concerned, and for very good reasons.

Two additional problems arise from the fact that Lord Mackay’s amendment refers to the European Communities Act 1972. First, let me stress that my comments here should not be taken to prejudice the remarks I have already made that it is not about the 1972 Act exceptionally, but rather that Parliament has voluntarily agreed, as Lord Bridge said in the Factortame case, to incorporate that Act and therefore to allow all the consequences that flow from it, which are accumulating and, in my view, are extremely damaging to the United Kingdom and the people of this country in their daily lives. If we specify “European Communities Act 1972” rather than “an Act of Parliament”, an argument can properly be made that we are, effectively, disabling Parliament from giving effect to European law in future by means other than the European Communities Act—or, in other words, by a new Act. This is the law of unintended consequences, but made much more serious given the context of parliamentary supremacy.

The other problem is a technical question about an important issue relating to statutory interpretation. However much we in this House may wish to regard this matter as just a matter of debate, unfortunately when it gets into the clutches of the courts and certain elements in the Supreme Court who have a tendency to want to push the envelope on these issues, the reality is that it ceases to be a technical question, and becomes a very important constitutional question. I state unequivocally that that has led me to the view that I have to resist the Government’s amendment, and I urge other Members to do the same. If we specify “European Communities Act 1972”, a question arises as to whether that reference would cover future amendments to that Act after this Bill is enacted.

I am going into the details of all this because I want them to be on the record; the devil is in the detail. The Interpretation Act 1978 is the basis on which I believe the provision under discussion will be interpreted by the courts. Once it has left this House with these offensive words in it, as prescribed by Lord Mackay of Clashfern and the advice he has given to the House of Lords, it will become the law of the land and will then ultimately end up in the Supreme Court, with extremely unpredictable unintended consequences. There will then be a very dangerous situation. That is why I am taking the trouble to set all this out. The Supreme Court also has an obligation to consider what has been said in Parliament.

Turning to the point about statutory interpretation, as I have said the question arises as to whether the reference to the European Communities Act 1972 would cover future amendments to it after this Bill has been enacted. Section 20(2) of the Interpretation Act is ambiguous on this very difficult point, as is said in Francis Bennion’s superb volume on statutory interpretation. Section 20 provides:

“Where an Act refers to an enactment, the reference, unless the contrary intention appears, is a reference to that enactment as amended, and includes a reference thereto as extended or applied, by or under any other enactment, including any other provision of that Act.”

In a case on an analogous provision in a tax statute, the court in question held that applying it to future amendments was to give it

“a width of application which the wording, at best equivocal, could not bear, especially in a taxing statute.”

The Lords amendment therefore raises a doubt about whether clause 18 will apply to future amendments of the European Communities Act 1972 and consequently raises an unnecessary doubt about the application of the principle of dualism to such future amendments—in other words, opening the door to interpretation by the courts on this fundamental question.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee 7:45 pm, 11th July 2011

May I just test my understanding? Am I right in thinking that my hon. Friend is saying that the original wording of the clause, covered by the Interpretation Act, covered everything, but referring specifically to the European Communities Act 1972 serves to limit the meaning of the clause so that future amendments to the 1972 Act will not be covered by it and are therefore subject to the interpretation of the Supreme Court?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Effectively yes, and that is the one thing we wanted to avoid above all else. That is why the Committee took the view that it did on clause 18, as shared by Lord Howe of Aberavon, who is by no means a Eurosceptic. On a matter of clear interpretation after very considerable consideration—he is both a former Foreign Secretary and distinguished Queen’s counsel who brought the European Communities Act into being in the House of Commons in 1972—he says that clause 18 is completely unnecessary. He agrees with the Committee, and now, for the sake of trying to counter-balance the views of Lord Mackay of Clashfern, the Government are falling into the trap that I have described and making the potential for interpretation by the courts extremely dangerous.

If there is to be a clause 18, for the reasons that I have outlined, the version that went to the Lords from the Commons should be preferred to the Lords amendment in the name of Lord Mackay of Clashfern. As I proposed in the amendment to Government amendment (b), the words “Act of Parliament” are to be preferred to “the European Communities Act 1972”. The Government’s amendment addresses these issues, but it would be much better not to state the principle at all; the amendment fails to deal with the trap that has been set. I know Lord Mackay of Clashfern to be a distinguished and canny Scots lawyer, and he understands exactly what he intends. He has, by the most clever sleight of hand, reinserted into the provision—[Interruption.] I see the Minister shaking his head and I shall give way to him.

Photo of David Lidington David Lidington The Minister for Europe 8:00 pm, 11th July 2011

I respect my hon. Friend’s expertise in this area, but to suggest that Lord Mackay of Clashfern would be party to any kind of sleight of hand is not to do him justice, and I hope that my hon. Friend would reconsider that point.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I have no problem in acknowledging someone’s powerful views on constitutional questions. For example, I remember during the Maastricht proceedings that the noble Lord was quite clear on the question of whether the Maastricht treaty took us further and deeper into the integration process. He argued that it did not make any difference in principle because the 1972 Act already conceded that there had been a change in the constitutional position and, to all intents and purposes, there was, thus, no real change in the substance of the issue. That is not to accuse anybody; it is merely to recognise that they have a constitutional viewpoint and to recognise how they really regard the encroachments on our sovereignty, which were evident in the Jackson case, in the evidence that the Committee received from many distinguished witnesses and in the fact that the Government’s previous explanatory notes led us into a situation where we criticised the Government and they withdrew the offensive words, precisely for the reasons that I am presenting.

The reality is that we have caught out the Government on their wording and they have now acquiesced in other wording which opens the door to statutory interpretation by the Supreme Court. That is the kernel of this matter. Whether or not my right hon. Friend the Minister really likes the way in which I have expressed this is neither here nor there. The real question, on which I challenge him, is this: does he deny that the wording in the Government’s amendment, in response to the Lords amendment, imports the opportunity for the Supreme Court to apply statutory interpretation and, thereby, to create a situation that could be best avoided, as set out by Lord Howe of Aberavon, our European Scrutiny Committee and the evidence that we received from so many people, by having no clause at all, rather than the current clause 18?

The Minister knows that I feel very strongly about the fact that we promised in our manifesto a sovereignty Act, and that was the consequence of discussions at the very highest level with the leadership. We knew that that was put into the manifesto as a direct response to the promises that were made. The bottom line is that we were given a second-rate provision that is unnecessary and that has since been criticised by the European Scrutiny Committee and eminent constitutional experts, including Lord Howe of Aberavon, and what the Government are introducing merely acquiesces to a degree in what Lord Mackay of Clashfern has proposed. That simply is not good enough and the Government should withdraw the proposed clause while they have the opportunity to do so. It is for those reasons that I shall be voting against it.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

This long debate, which has taken place over a number of months, has almost come full circle. I recall that we began our deliberations with Mr Cash and others saying that what had been originally promised was a sovereignty Act but what was proposed was a truncated, boiled-down and diluted version of their intention in the form of a solitary clause—clause 18. Whichever permutation of clause 18 one looks at, be it what was originally suggested by the Government, the Lords amendment or the Government amendment to the Lords amendment, one finds that it is basically a declaratory statement. It does not take us back or forward; it is a pious declaration, a statement of fact and a statement of the legal position at the moment. Therefore, it does not do any harm and, in fact, it could possibly be useful.

There has been a modest change of emphasis in Government amendment (b) to the Lords amendment, and it is a sensible one. The words “by virtue of an Act of Parliament” were omitted from the Lords amendment and we were concerned that the emphasis was being placed solely on the 1972 Act. Although we recognise that that is the most important piece of legislation regarding the primacy of European law, other items of legislation are involved here. I was particularly pleased that the Minister referred to the legislation on the devolved institutions, as that is important in ensuring that we take a comprehensive approach. Therefore, the Government have put forward a modest improvement to what was suggested by the Lords. I recognise that they have gone some way towards accommodating what the Lords have said and I welcome that, which is why we will be supporting the Government amendment.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Is the hon. Gentleman actually saying that he agrees with the Government’s proposal, notwithstanding what has been said by the European Scrutiny Committee, Lord Howe of Aberavon and all the other people I have mentioned, and notwithstanding the most powerful legal advice that has been submitted, which suggests that this is a very unwise and dangerous move, for the reasons that I have set out?

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

With all due respect, I say to the hon. Gentleman that I have read in great detail all the evidence that was given to the European Scrutiny Committee and I think that his summation of it is his interpretation of the evidence given. Most of the witnesses to the European Scrutiny Committee said, as I have said, that clause 18 is a statement of fact and that it does not take us forward or back. Therefore, we should not get hot under the collar about it.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I do not wish to detain the House for more than a few minutes. I had not intended to take part in this debate, as I took part extensively in the debate on clause 18 in Committee and I thought that we had covered all the issues then. I had become reconciled to accepting the clause as the Government had drafted it and I came to today’s debate expecting my hon. Friend Mr Cash to make a technical argument, but one that would not necessarily excite me—of course I was wrong. Mr David says that the clause does not take us back and it does not take us forward, but he has missed the fundamental point about the revised drafting of the clause. I am not a lawyer—I am an amateur lawyer—but ever since we started discussing this clause earlier this year, I have had the sinking feeling that we are in very deep water and that we are potentially creating completely unnecessary problems for this House and for Parliament. I say that because the sovereignty of Parliament is axiomatic; it is self-evident and it is a historical fact.

We do not need to legislate in any way to maintain the sovereignty of Parliament. There would have been some virtue in a declaratory Act with the legal effect of returning powers to the United Kingdom from the European Union to redress our relationship so that we had the ability to negotiate, but this clause, which has erroneously been nicknamed the “sovereignty” clause but is no such thing, does not even attempt to do that. In fact, it does not even refer to the word “sovereignty”.

The clause puts in statute issues that are contested by the European Union legal structures in a context that means that the Supreme Court might have to interpret them. We know that some justices of our Supreme Court question the very notion of the sovereignty of Parliament as I have described it and think it is a matter of common law rather than of history and fact. I believe they are wrong and that Parliament will always be able to prove them wrong by legislating, as statute law always overrides common law.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Would my hon. Friend be interested to know that I was talking to an extremely eminent lawyer, although I hesitate to say who it was, and when he heard my arguments on clause 18, he said, “If a majority of the justices of the Supreme Court took the view that you are taking, it would be open to Parliament the next day”—he used those words—“to reverse that”? That troubles me, because if that happened it would precipitate a 100% crisis.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I am grateful to my hon. Friend for drawing the House’s attention to that conversation. We are potentially engaged in the early skirmishes of a dispute between Parliament and the judiciary about which has supremacy. By legislating on this issue, which touches on the sovereignty of the Queen in Parliament, we are tempting the justices of the Supreme Court to begin toying with those concepts. They have already done so in some of their ancillary statements to cases—I forget the right word for such statements. We know that they are tempted in that direction and putting this clause into statute, as the evidence received by the European Scrutiny Committee showed, could be the red rag to the bull, providing meat for the justices of the Supreme Court to chew on.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I am just coming to the hon. Gentleman’s point.

I was minded to accept that we had done such a thing before I heard my hon. Friend the Member for Stone speak, but he has described how the situation might have been made worse than it would have been under the previous drafting of the clause. He referred to section 20 of the Interpretation Act 1978, which, if I understand it correctly, already stipulates that when an Act is referred to in an Act of Parliament that Act is deemed not to be constantly updated by subsequent amendments. The Act referred to in an Act of Parliament stands as it stood at the time of enactment and by specifying the European Communities Act 1972 in this clause we are opening up the possibility that at some stage in the future the 1972 Act will be amended but this clause will not apply to the amended Act or to the amendments to the Act, but only to the Act as it stands now. Should there be a dispute between the Supreme Court and Parliament about the sovereignty issues that touch on our relationship with the European Union, the question would be left open with more ambiguity rather than less.

Given that we started from an entirely unsatisfactory position, I must say that I will support my hon. Friend the Member for Stone in the Lobby tonight if his amendment is put to a vote. It is important to put it on the record that the situation is unsatisfactory, that it is not as we wanted it to be when we set out our manifesto and that we are possibly making the situation worse. If we accept the amendment from the other place, we might make the situation even worse, and the very fact that my right hon. Friend the Minister has adjusted his position to accommodate the wording from the other place adds to the sinking feeling that the Government do not stand on stable legal ground and that they can be pushed around by extremely able, intelligent and clever people who nevertheless have a different view from my right hon. Friend and I on the question of our future relationship with the European Union. I am left uneasy and I want to register that unease tonight.

Photo of David Lidington David Lidington The Minister for Europe 8:15 pm, 11th July 2011

I am grateful to Mr David and my hon. Friends the Members for Stone (Mr Cash) and for Harwich and North Essex (Mr Jenkin) for their participation in the debate and I shall be brief in my response. I want to deal with the point of principle as well as the important point of detail about the interaction between this clause, the Government amendment and the Interpretation Act 1978.

Photo of Wayne David Wayne David Shadow Minister (Foreign and Commonwealth Affairs)

Before the Minister goes on, may I cast his mind back to the trenchant criticism from the European Scrutiny Committee about the explanatory notes that accompanied the Bill and, in particular, those on clause 18? I seem to recall the Minister giving the House a commitment that the explanatory notes would be examined and, if necessary, redrafted. Has that redrafting occurred and will there be further redrafting in the context of his amendment tonight?

Photo of David Lidington David Lidington The Minister for Europe

The explanatory notes were changed when they were reprinted before the Bill was introduced in the House of Lords, just as I gave the House an undertaking that they would be. We amended the notes to make it clear that the references to common law in the relevant section were meant in contradistinction to statute law and that we were not commenting, as a Government and in either the Bill or the notes, on the important but much broader philosophical debate about the origins of parliamentary sovereignty.

Let me deal first with the point of general principle to which my hon. Friend the Member for Stone, in particular, referred. It has always been the Government’s position that clause 18 is declaratory of the existing state of our law in making it clear that European Union law has direct effect and application in this country for one reason and one reason only: namely, Parliament has given it that effect through primary legislation. I differ from my hon. Friend in that I continue to believe that it is valuable for us to have this declaratory clause on the statute book to serve as a clear expression of Parliament’s will and as an abiding point of reference for the courts if they are invited in future to consider again the sort of arguments that have previously been brought before them, most notably by the prosecution in the metric martyrs case, to the effect that European law has acquired over time an autonomous authority of its own that does not derive from Acts of Parliament.

Photo of Steven Baker Steven Baker Conservative, Wycombe

May I say how grateful I am that my right hon. Friend has given this clear statement of the Government’s and Parliament’s intent? We appear to have disappeared into such esoterica that even for one who takes a close interest in the clause it is almost impossible to understand the debate. Will the Minister confirm that should judges need to rule on this clause, they will be able to refer to Hansard to be absolutely clear what Parliament’s intent was?

Photo of David Lidington David Lidington The Minister for Europe

Judges will of course look first at statute but it is also the case, following the Pepper v. Hart judgment, that if the courts are in any way uncertain about the meaning of a piece of legislation, they can look at what the Minister of the day said on behalf of the Government, as recorded in Hansard, as an aid to interpretation.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

That may well be but as the Minister rightly says it will be the Minister’s view that is taken into account by the court and the Whips will make darn certain this evening that we lose this vote. That is the problem and that is one reason why I take such exception to this.

Photo of David Lidington David Lidington The Minister for Europe

My hon. Friend has made his point. Not only Lord Mackay but the Lords Constitution Committee recognised that clause 18 is a reflection of the existing position in United Kingdom law. I do not want to get into a long argument with my hon. Friend the Member for Stone about the report of the European Scrutiny Committee, but that report focused largely on the bigger question of whether parliamentary sovereignty was a common-law principle. I repeat to the House what I said during Committee—that this clause does not get into that issue at all. It makes clear the basis on which European law takes effect in our domestic legal order.

Let me address the detailed point that has been put. Both my hon. Friends the Members for Stone and for Harwich and North Essex argued that the reference to the 1972 Act taken together with the Interpretation Act meant there was a risk of future amendments to the 1972 Act falling outside the scope of clause 18. This point was specifically considered in the drafting of the Government’s amendments to the Lords amendment. That is exactly why the Government’s amendments, especially amendment (b), do not limit the clause to the 1972 Act but also take account of all Acts that might give rise to directly applicable and enforceable EU law, which will include any Acts amending the 1972 Act. I hope that with that reassurance colleagues on both sides of the House will be able to endorse the Government’s amendments.

Amendment (a) made to Lords amendment 14.

Amendment (b) propo sed to Lords amendment 14.— (Mr Lidington .)

Question put, That the amendment be made.

The House divided:

Ayes 485, Noes 22.

Division number 318

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Amendment (b) made to Lords amendment 14.

Lords amendment 14, as amended, agreed to.