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"The evidence we received makes plain that these two spheres of law coexist, usually peacefully, clashing occasionally. When
they do clash, neither side gives way. The Court of Justice of the EU maintains that EU law has primacy over national law, including national constitutional law."
I find it disturbing that some Members appear to believe that the courts have no role in the interpretation of law. As one of my hon. Friends observed earlier, the laws that we pass in relation to Europe are interpreted over time, and that is the role of the courts. It would be completely wrong for Parliament to interfere directly in the interpretation of a law once it had been passed. European law is no different from other laws in the sense that there are various possible interpretations of it. The Thoburn case made it clear that European law could not direct what the House of Commons could do in terms of making its own laws.
Kelvin Hopkins: Like my hon. Friend the Member for Rhondda (Chris Bryant), who is no longer in the Chamber, my hon. Friend has made a point about lawyers' interpreting law and having scope to do so within statute. Parliament does not deliberately leave scope for lawyers to interpret the law-it tries to make its legislation fairly precise-but sometimes it is not precise enough, and at that point the lawyers intervene to interpret it. Parliament does not deliberately make laws open-ended so that lawyers can have a field day.
There is a danger that amendment 41, and indeed new clause 1, will enable lawyers to interpret the meaning of "sovereignty", and that the clearly defined roles and sovereignty of the House of Commons will be interpreted by judges, which would be wrong. Clause 18 has been tabled purely for political reasons, to placate people such as the hon. Members for Wellingborough (Mr Bone) and for Harwich and North Essex (Mr Jenkin), but I doubt that it will placate them in any way, and I believe that it poses a grave danger
Mr Jones: Knowing the hon. Gentleman's record, I would have thought the Prime Minister would have given up on him a long time ago. If he is waiting for the call for the red box and the car, I think he will be waiting a very long time.
The important point about the Thoburn v. Sunderland City Council case is that the council attempted to assert the primacy of EU law and EU legislative and judicial institutions but that was rejected, and that is the case law that is now in place. Therefore, although Eurosceptics in this House and commentators outside suggest that somehow these laws are coming from Europe and they are imposed on us and we have no control over them,
that is not the case, so I do not see why we need this point to be reinforced through clause 18. To be fair to the European Scrutiny Committee, it makes the good point that the Thoburn case sets out the law as it is currently interpreted.
Chris Heaton-Harris: I understand the hon. Gentleman's argument, but does he not agree that the European Court of Justice has been saying for decades that it believes it has been creating a new legal order-I cite the Van Gend en Loos judgment of 1963-and we entered into that through the European Communities Act 1972? Therefore, we have already impinged to some degree on our parliamentary sovereignty.
Mr Jones: The hon. Gentleman needs to realise that it was this House that passed the 1972 Act that took us into that. If we want to amend it, we can do so by treaty. We could also have said at the time that we were not going to accept certain parts of the treaty negotiations. However, it is not the case that some far-off distant land is imposing things on this country. I know Conservative Members do not like the 1972 Act, but at least it was this Parliament that passed it. That is the important point.
"If Parliament wills it may legislate to override the European Communities Act 1972 or the EU Treaties by repealing them"
Bob Stewart (Beckenham) (Con): I am slightly foxed. Does not sovereignty mean that if we do not like it, we do not do it, and if we cannot do it and we do not like it, we can change it? Is that not implied by the 1972 Act that was passed by this Parliament? Therefore, if we do not want to do it, this House is sovereign and will not do it. Is that not what we are talking about?
Mr Jones: There is a mechanism by which the House can do that. That mechanism is to amend the 1972 Act or the subsequent treaties. I know it might disappoint the hon. Gentleman to hear this-although perhaps his local association is one of the most pro-European-but we must explain to people how the system through which European law becomes national law in this country actually works. It is not the case that it arrives in an envelope on the Prime Minister's desk one week, and then it is just adopted. Different countries interpret and combine European legislation and laws into their national legislation in different ways, and in the past our country has been accused of gold-plating certain regulations and other measures.
It is not the case that sovereignty is endangered by Europe. There are powers open to us to change the treaties or Acts if we wish to do so. It is strange that there is a later clause in this Bill on referendums. Strangely, it will bind future Governments and Parliaments to referendums on a range of issues. That is trying to look too far into the future, and many people might object to such a future referendum.
On the hon. Gentleman's point about the clause on referendums and looking too far into the future, does he not agree that that measure is in place
because we are in fact looking into the past as the last Government refused the people the referendum that they had promised?
Mr Jones: I do not want to go down that route, but I think that point has already been dealt with very well. We did not do what we are being accused of having done. [Interruption.] I do sometimes worry about some Conservative Members, as they must have to lie down in a darkened room and take sedatives after having got themselves so frothed up and excitable about the Lisbon treaty somehow being the end of the world as we know it. Unfortunately for them, the end of the world has not happened because of the implementation of the Lisbon treaty.
Mr MacShane: For the sake of some of our new distinguished colleagues, it might be worth while if we remind ourselves that a promise was made on a referendum on the constitutional treaty, but that was killed by the French and the Dutch. The right hon. Member for North Somerset (Dr Fox), who is now Secretary of State for Defence, said at the Dispatch Box that he was a doctor and he knew death when he saw it. That constitution treaty is dead, and we cannot have a referendum on a dead parrot.
Mr Jones: I am sure, however, that some Conservative Members would have such a referendum if they could-although I would not like to challenge some of them to do that. [Interruption.] No, I do not want to go down that route.
Mr Jones: My mind has been set off with thoughts of my right hon. Friend the Member for Rotherham (Mr MacShane) doing various things with dead parrots, but I shall try to resist any temptation to go down that route.
"Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated. We are gravely concerned that for political reasons it has been portrayed by the Government as a sovereignty clause in correspondence and also in the Explanatory Notes".
I would be concerned if, because of what has been said tonight, the explanatory notes are amended during the Bill's passage, because that might mean we do not have proper explanatory notes, and it might have an impact on our being able to scrutinise the Bill thoroughly.
The Committee also states that the Foreign Secretary was so confident of this clause that he would not appear before the Committee. I think that is wrong. To ensure that the Executive are properly scrutinised, Cabinet Ministers should appear before any Select Committee or inquiry that invites them to do so, and I cannot understand why he chose not to do so on this occasion.
Graham Stringer (Blackley and Broughton) (Lab):
I agree with my hon. Friend that clause 18 is a smokescreen to stop the real debate taking place both in this House and the country. Does he agree that we will not establish a real position to the satisfaction of the electorate until
we either allow the electorate to have a referendum on some of the big issues to do with Europe and the European Union or one of the three main parties puts in their manifesto a genuinely more Eurosceptical position that is even more in line with the majority view in this country?
Mr Jones: Yes, but interestingly, as my right hon. Friend the Member for Rotherham mentioned, the Conservatives failed to do that. Obviously, they were trying to decontaminate the Conservative brand and thought that one of the elements of doing so was not saying nasty things about Europe. I must make it clear to my hon. Friend that if any major constitutional changes in respect of Europe are made in future, referendums will be important. The hon. Member for Dover hinted that every so many years we should have a fundamental referendum on whether we are in or out of the European Community. That is completely wrong and does not help this country's standing in Europe. We have a settled position in Europe and it would be best if we moved on to dealing with what is important for people on Europe. As my hon. Friend said, that is about what Europe delivers for this country and issues associated with accountability and transparency, which need to be addressed.
"The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed."
If we are reaffirming this sovereignty, we are starting from the premise that it already exists. I am not sure, but the phrasing of the amendment may belie the fact that sovereignty is in no danger from Europe. The fudge in the Bill was included because of the coalition agreement or because once the Foreign Office lawyers got hold of the Conservative manifesto they realised that what was being promised in a sovereignty Bill was complete nonsense. It was obviously very useful for political purposes but was not needed or enforceable in terms of what is in place at the moment.
Mr Jones: The hon. Gentleman seems to have completely misunderstood the point that I was making. If someone is reaffirming something, be it marriage or, in this case, sovereignty, they recognise that it was there in the first place. So I cannot see the point of what he is trying to say.
Clearly, clause 18 has come about for political reasons. An honourable attempt is being made to get at least something out of the clause through the proposal for annual reporting. Amendment 52 states:
"The Secretary of State shall prepare an annual report on the extent to which in the previous 12 months the provisions of subsection (1) have been challenged or questioned in the courts, including the European Court of Justice, identifying any challenge to the declaration contained in that subsection that the status of EU law is dependent on the continuing statutory basis provided by the European Communities Act 1972."
That would at least ensure that we would be dealing with facts, rather than what we deal with on many occasions in the press and, increasingly, from Eurosceptic members of the Conservative party. They believe that if something is said enough times, people will believe it.
Mr Richard Shepherd (Aldridge-Brownhills) (Con): It seems that the hon. Gentleman missed long passages of the speech made by my hon. Friend the Member for Stone (Mr Cash). One of the reasons why he argued that there was a need for the words that the hon. Gentleman found mystifying was because of judicial activism. My hon. Friend's report, which the hon. Gentleman admired, cites Lord Hope and his comment:
"Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute...Step by step, gradually but surely, the English principle of the absolute...sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified."
Mr Jones: I had moved on to dealing with a new point, but I am willing to go back. I am glad that the hon. Gentleman raised that point, because I can now mention a couple of issues in response. First, any law passed in this country will be interpreted by the courts. If they do something that we do not agree with, this House has the power to change it. The danger with including the sovereignty argument in clause 18 is that courts would then have debates about sovereignty, and that would be strange. How would this House then be able to change the law or interpret a court's interpretation of sovereignty?
Jacob Rees-Mogg (North East Somerset) (Con): I believe that what Lord Hope is saying is that this House could pass an Act that was not, in itself, lawful. What amendment 41 would achieve is a reassertion of the fact that this House could not do anything of the kind and that any act of this House is superior to any judgment of any court. If these arrangements are based on the rule of law, rather than the supremacy of Parliament, the judges could always overrule Parliament, and that is extraordinarily dangerous.
Mr Jones: Judges often do overrule Parliament on the interpretation of the law. The danger of going down the line that the hon. Gentleman is suggesting is that we might be saying that when we pass a law it could never be challenged or changed. Would we be saying that every law passed in this Parliament is perfect and will never be in need of amendment or interpretation? As has been said, the entire case law of this country and the way in which we have developed laws in this country has resulted from people challenging laws, including in terms of European legislation. The Thoburn v. Sunderland City Council case clarified the position. I am not a lawyer, but I have employed many lawyers over the years at great expense and so I know that they will argue different ways around things. Sometimes they will do so to make a point, but on other occasions they will do so to get their fees up. On laws such as this or on health and safety legislation, which was the area that I was involved in, case law precedents always develop. In the cases I was involved in, that went on to bring justice to many people who had been involved in the asbestos industry. The important question is: do we really want judges to start giving interpretations of sovereignty? That is the danger in what the hon. Member for Stone is proposing in his amendment.
May I return to what I was discussing before I was interrupted by the hon. Member for Aldridge-Brownhills (Mr Shepherd)? I am always pleased to take interventions from him because, as he knows, I am a great fan. Amendment 52 would be useful, not only for the debate, but as a safeguard. If we were in a situation where we thought that European law was somehow infringing on not only the rights and liberties of our citizens, but the activities of this House, it would be important. This is not an ideal situation. The Government are always talking about unnecessary legislation and it is possible that this entire Bill is just that. Clause 18 certainly is unnecessary because it simply declares what is already the case. That is an important point. There is an idea that the Government have dressed this up and that they are going to make some great fundamental change or are going to protect against any changes in European law, but that is not the case at all. It is also important to make it clear that future Parliaments will interpret European law and will disagree with what is being put forward in this Bill. We cannot allow this Parliament to leave future Parliaments hamstrung in relation to freedoms.
In conclusion, clause 18 was introduced as a political fudge and I doubt whether it will placate the red-blooded, anti-Europe sceptics on the Tory Back Benches. Neither will it placate the commentators in the press who want us to withdraw from Europe. The clear option is to amend the 1972 Act, which would be more honest. This has exposed the Prime Minister not only in that the detoxification of the Conservative brand clearly has not taken place but because, judging by tonight's attendance, it has put him on a collision course with large sections of his own Back Benchers. As this Parliament goes on, we will increasingly see the true nature of the new Conservative intake.
Neil Carmichael (Stroud) (Con): My hon. Friend the Member for North West Leicestershire (Andrew Bridgen) mentioned marriage. That was a good point because renewing one's marriage vows does not make one's marriage any stronger. That is what we should talk about. It is what one does with and in one's marriage that matters, and the same applies to this sovereignty issue. Renewing our commitment to sovereignty will not mean that we are more sovereign. That is the thrust of my speech.
Mr Kevan Jones: At least when people renew their marriage vows, they might have a party or celebration afterwards, but the measure would simply reiterate something that already exists, so there would be no party or feel-good factor afterwards. There might be a feel-good factor to some in the Conservative party, but that is about it.
Neil Carmichael: We in the Conservative party are always celebrating, especially with our coalition partners, the success of our Government, so we have lots to celebrate. The hon. Gentleman is right about the renewal of marriage vows being a cause for celebration, but I am not entirely sure that we will be drinking champagne when we have defeated this amendment and passed the Act.
The point is that if something exists, we do not need to keep reaffirming it. Funnily enough, the hon. Member for North Durham (Mr Jones) was absolutely right
about the wording of the amendment: if one reaffirms something, one effectively admits that it is already there. Something I have noticed during the past three and half hours I have spent in this debate, except for the brief moment when I had a drink, is that clause 18, as drafted, is required because there is so much misunderstanding about what sovereignty is and what power Parliament has. When my right hon. Friend the Member for Wokingham (Mr Redwood) spoke, we deviated into the 1600s in connection with the outcome and causes of the English civil war, but the real issue there was the relationship between the King and Parliament. We must remember that the monarchy is still part of Parliament, because an Act does not become an Act until it has received Royal Assent.
Another, much more interesting, dimension of this discussion is the transfer from kingdom to nation state. That has rather more to do with sovereignty than our involvement in the European Union. Suppose that we wanted to leave the European Union-we would simply repeal the European Communities Act 1972. We are not going to do that, but that is what we would have to do. But what if Essex wanted to leave England? How would that unfold? That would be a completely different situation and would bite at the issue of sovereignty. It is important to get right this issue of what sovereignty is. The shadow Minister started to speak about that and the very fact that we are debating it proves that we should not use the word sovereignty in the Bill because it will lead to a need for interpretation.
It is also important that instead of talking about sovereignty, as we have for the past three hours, we ought to discuss what Parliament should be doing to make a difference in the European Union, if that is what we really want. My right hon. Friend the Member for Wokingham did not really answer the question he was asked about the common fisheries policy. The matter is very simple: if we did not want to be in the CFP, we would have to say so and pass appropriate legislation having made the necessary agreement with our European partners. If we wanted to do that, it would no doubt be messy and would certainly be complicated, but it would not be prevented by our no longer being sovereign because we are. Parliament has the power to take the decisions necessary to bring about such an outcome.
It is important to focus on what Parliament does rather than on what we think it is. That is the difference. This discussion is about sovereignty, but we have to move away from that specific issue and focus instead on the power and role of Parliament and the way it can influence things. At the end of the day, if we decided to leave the European Union, we would have to repeal the 1972 Act, which some people might want to do. Others might want to reform or restructure it in some way-we have heard from my hon. Friend the Member for Dover (Charlie Elphicke) that that would, to some extent, be his direction of travel-but the most important thing for us to do is define the national interest and pursue it relentlessly. My hon. Friend the Member for Stone (Mr Cash) talked about the national interest and Disraeli's description of the Conservative party as always being the national party. That is what we have to do, and that is what the Conservative party, with our Liberal Democrat partners, will continue to do-try to shape a role for
Britain that is constructive but without allowing the European Union to be too intrusive on how we proceed. That is the best way that we can act as a Government.
Mr MacShane: I am pleased to follow the hon. Member for Stroud (Neil Carmichael) who, in his short and effective speech, demolished some of the more windy and high-blown rhetoric that we have heard tonight. Sovereignty is a wonderful topic for a seminar but is rather more difficult to define than one might imagine. In many continental legislations, the people are sovereign. The American constitution starts: "We the People". In such a system, it is not the Parliament or Congress that is sovereign but the people, who grant to the President or Parliament the right to govern in their name. In other countries, there are checks and balances known as a constitution or as direct democracy through forms of plebiscite and referendum. We have never gone down that path and have always refused a written constitution. In his book, "The English Constitution", Bagehot contrasted the flexibility that the lack of a written constitution affords Britain with the American constitution, which he said was so rigid that it could be broken only through the civil war that was taking place as he was writing or compiling his book.
The additions that the hon. Member for Stone (Mr Cash) and his colleagues on both sides of the House propose to clause 18 are superfluous because they will not add one extra bit of strength to the Bill. The Bill is cynical and worthless. The Government-or at least the Conservative part of the Government-may have campaigned in opposition as Eurosceptics but they have found that they have to govern as Eurorealists. I congratulate the Minister and the Government on being very Eurorealist since the coalition was formed in May. They have accepted a number of measures that require Britain to pay money or accept collective decisions, and have shown no desire to oppose the proposed changes in the Lisbon treaty to effect greater economic governance in Europe that were decided collectively by all 27 member states. They hide behind the convenient and comforting myth that that only affects the eurozone but, precisely to ensure better and more effective governance, much of which will involve a degree of fiscal discipline, we are gradually moving in the direction of greater co-ordination of our economic and fiscal policies in Europe. It will not be a case of giving orders or dictating tax levels-some countries might want to put up VAT, some might want to put up income tax, some might want to put up corporation, petrol, environmental, housing tax or whatever, and that will remain their individual decision-but much greater co-ordination is coming fast down the tracks. We live in such an open trading economy that if we want the European Union to remain open to all of our products, services, people and capital, we will require greater co-ordination.
The Bill discusses holding referendums if there are treaty changes that the Government do not like, but that is a contradiction, because no Government are going to sign a new treaty, then bring it back to the country for a referendum. Government's responsibility is to negotiate the best deal on a treaty that they can achieve for the country. That is the whole point about the EU-it is an association of nations bound together by a common treaty, and the amendments cannot change
that substantial fact. In many areas of national life, the treaty that binds us together in the World Trade Organisation is far more powerful. It can dictate what British goods can be exported, or what Britain has to accept in imports from other countries. That is what the WTO exists to do. It was formerly called, if hon. Members remember, the general agreements on tariffs and trade, and it was a treaty. After 1945, Britain set it up, along with many other treaty-based organisations. There has been much generalised waffle about the common fisheries policy, but an equally important treaty that delineates our territorial waters is the law of the sea, which obliges countries to obey its provisions.
We have heard a wide range of speeches, including one from the right hon. Member for Wokingham (Mr Redwood). We had a wonderful seminar on constitutional law from the hon. Member for Stone, and we are discussing something of profound importance: whether or not our country and this Parliament want to stay in the European Union on the common terms dictated by the treaty.
Ian Paisley (North Antrim) (DUP): I appreciate the right hon. Gentleman's courtesy in giving way. He is right that putting something into a Bill and stating that we reaffirm sovereignty may not in itself affect or change the law, but it sends a signal to the very people who effect our law, for example the UKRep or the Council of Ministers, and all those people who just go with the flow in Europe, instead of standing up for the needs of Britain, which are effectively written off. Saying it therefore sends a positive and powerful signal.
With respect, the hon. Gentleman is not being fair to our officials, who undertake the arduous task of negotiating the treaties or agreements that affect
Britain. If he travelled widely on the continent as I do-and I am sure that he does, too-he would find that in capital after capital, people think that the EU is, if not a British plot, an Anglo-Saxon hymn to free trade. Again and again, in Berlin, Madrid and Paris, I have had to defend the EU and the European Court of Justice, because the vast majority of rulings in the ECJ uphold open and free trade, and slap down the protectionist instincts of many EU member states.
Ian Paisley: I thank the right hon. Gentleman for almost inviting me back. Having worked in Brussels and in France for two years on issues to do with European law and how it affects our kingdom, I found that people went with the flow unless backbone was put into the UKRep's office or into the Council of Ministers. We see it directly in fisheries policy, as fishermen in Northern Ireland, Wales and Scotland are prohibited from doing the job that they want to do-fishing our seas-week in, week out, because of bizarre regulations that flow from Europe.
Mr MacShane: As the hon. Gentleman spent time in France, he may have read in the French papers reports of blockade after blockade of French ports by French fishermen, outraged that the British interpretation in Brussels of the common fisheries policies prevented them from doing what they wanted to do. This is a collective decision that we have taken, and I suggest that Government Members are honest: if they do not like the European Union, they will not alter it one little bit by putting new forms of words into clause 18.
Our representatives in Brussels and in all the Ministries that negotiate every aspect of our relationship with the EU will not be impressed by the proposals. If hon. Members do not like it, they should pull out-that is the honest position to take. There is no magic form of words that can get us out of our obligations under this or any other treaty. If they do not want to be in any of the treaty-based organisations, all of which are part of international law and which can, if necessary be prayed in aid by our judges, they should say so. There is a completely separate problem concerning the erosion of parliamentary sovereignty in relation to our courts. We are writing into our unwritten constitution judicial power that exists in other countries. The Germans have a constitutional court, and its rulings guide and control part of Germany's relationship with the EU. We do not have such a court, but perhaps we should have. We all know full well the strength and power of the Supreme Court in the American constitution. We have never allowed that; we have wanted everything to happen here in Parliament and have not moved to a form of written constitution. We could put into one an obligation to have referendums on new treaties, as the Irish constitutional court has and the Danish constitution does. All those things are possible.
The Government could simply have said, "There will be a referendum on each new EU treaty-period." That would have been very powerful and given the sovereign people the right to decide what should or should not happen. It would have severely limited the chances of this or any future Government negotiating changes to a treaty that we judged to be in our interests.
It is no accident that any reference to a referendum on enlargement is excluded from the Bill, because the Government want Turkey to join the EU-and so do I.
However, nobody in the House can possibly imagine that the question of whether 85 million Muslim ladies and gentlemen from Anatolia should have free access into this country would not receive a resounding "no" from the British people in a referendum.
Kelvin Hopkins: Time and again my right hon. Friend poses the alternative: "accept what we have, or get out of the European Union." Yet now we are talking about reform and change-perhaps even withdrawing from the common fisheries policy. I shall leave that there.
I want to reinforce the point made by the hon. Member for North Antrim (Ian Paisley), who talked about officials. I suggest that the politicians, particularly the people at the Commission, pushed Britain to the brink. Recently, we came close to having a referendum that would certainly have produced a no vote. This signal that we are giving to the European Union will emphasise the point that Britain was pushed to the brink of a serious referendum, with a no vote being the certain outcome. This signal will make sure that they do not push us again.
Mr MacShane: There is this version of Britain contra mundum-the 26 member states all ganging up against us. We have allies and friends, and we win arguments. The European Union is seen around the world as a model for open trade. Lorries leave Portugal and arrive in Poland. A lorry cannot leave Mexico with its Corona beer and unload it in San Diego; it has to unload it on to protectionist lorries controlled by trade unions in the United States.
I put it gently to hon. Members that they should be careful before getting what they wish-the disaggregation of the European Union, with every country rejecting European Court of Justice decisions that they do not like. France believed that it was sovereign when it refused to accept a pound, or a kilo, of British beef, at the time when the whole world thought that the beef was contaminated. We could not export it to Australia, and Canada would not accept it. The Commonwealth would not have it. Hong Kong, our Crown colony, would not have it. But the European Union had to accept British beef because the European Court of Justice accepted our scientific arguments that the beef was fit for sale in the common European market.
Most of my speech has consisted of accepting interventions from right hon. and hon. Friends and colleagues. With your permission, Mr Evans, I shall now sit down. [Hon. Members: "Hurrah!"] I do not propose to put that to a referendum; it is my sovereign decision whether to stand or sit, but the amendments
would not make one iota of difference to Britain's relationship with the EU. The Bill itself will also make very little difference, although that, as has been pointed out, may be a point for a later day. I sincerely put it to hon. Members who do not like the EU to have the courage of their convictions and start persuading their party to be as Eurosceptic in government as it was in opposition. But a party of U-turns will probably find that difficult to achieve.
Chris Heaton-Harris: Thank you for calling me to speak, sir; I call you "sir" because I am not sure whether I should call you Mr Deputy Speaker or Mr Evans, given the seat that you are in at the moment.
It is interesting to follow the right hon. Member for Rotherham (Mr MacShane) in a debate such as this. I was a Member of the European Parliament, which is arranged in such a way that the lights get brighter if the debate gets exciting and dimmer if the life goes out of the debate. If we had such a system in the House now, I fear that I would be speaking in complete darkness.
It would be easy to answer a number of the points made by the right hon. Gentleman, but I agree with what he said at the very beginning of his speech. I have tabled a bunch of amendments to the Bill, which deserves tightening up, although there is something in it worth salvaging. However, I looked at clause 18 and thought that it did not mean anything, so it was not worth tabling an amendment to it. It is a declaration.
Does clause 18 put the sovereignty of Parliament in relation to EU law beyond speculation? I do not think so. Does it affirm and confirm that EU law has legal standing in the UK only because Parliament wills it through Acts of Parliament? I am not convinced that it does. Equally, however, I am not convinced that the amendments tabled to clause 18 would add anything to it; they are not anything to get excited about. I do not think that clause 18 is a very good clause, and I am pretty sure that it is not a sovereignty clause. If it has a place anywhere in the Bill, it should be in the preamble. It would be a good place to start-a sort of "This is where we came from".
I have been following this process through the European Scrutiny Committee, and I have been fascinated by the different sorts of opinion that we can get from academics. In my 10 years as a Member of the European Parliament it was always interesting to get at least three academics in the room to give advice, because people knew that they could then get three completely different opinions and choose the one that they wanted.
I like to call myself a pragmatic Eurosceptic; I am a great believer in dealing with what is on the table and what we can achieve. I would like to think that the Bill will be able to achieve some things when we come to later clauses and amendments, but I just cannot bring myself to get excited about clause 18. I wish that the Government had not called it the delivery of the pledge made in the Conservative party's election manifesto, because I simply do not believe that it is.
There are many voters across the country who are slightly sceptical about Europe. The hon. Member for North Durham (Mr Jones) has left his seat, but many voters in his constituency will be sceptical about what goes on in the European Union. I do not think that they
will feel comforted by the fact that clause 18 is in the Bill. If we vote for the amendment tabled by my hon. Friend the Member for Stone (Mr Cash), I do not think that they will wake up and think that that has achieved very much. Whether the clause stays as it is or the amendment is accepted, we will still be where we are: nothing will have changed.
I followed the process in the European Scrutiny Committee with great interest because some interesting and eminent people came before us. They often looked at the exciting parts of the Government's explanatory notes to the Bill, especially the statement:
"This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts."
I assume that that means the British courts, but because it is fairly vague I guess that it could equally mean the European courts. I have written to the Minister for Europe asking for clarification on a number of points about the Bill, but the explanatory notes already say:
"Clause 18 is a declaratory provision which confirms that directly applicable or directly effective EU law only takes effect in the UK as a result of the existence of an Act of Parliament."
I think that the whole House can concur with that point. The principle of parliamentary sovereignty is that Parliament is free to make or unmake-that is a terrible phrase, but it means to get rid of-any law if it wishes to do so, which will be upheld by the courts. That has been a keystone of the UK constitution for centuries. Nothing in the clause, or indeed in the amendment to the clause, would change that.
We must remember that the British people have a distinct lack of trust in what anybody says on this subject in this place. They do not trust Her Majesty's Opposition, because although the shadow Minister, the hon. Member for Caerphilly (Mr David), may say that the constitutional treaty was very different from the Lisbon treaty, the majority of the public are not fools and they understand that the words were basically the same; in fact, even the order in which they appeared was basically the same. The Lisbon treaty was pretty much the same thing, and we should have had a referendum. Even if the hon. Gentleman disagrees with that point, he must understand that people outside this place feel like that.
I am happy to concur with the people who say, "Let's be honest about this." I would like to repeal sections 2 and 3 of the European Communities Act 1972, and I would like to have a proper sovereignty Bill. However, that is not on offer. I am in a coalition Government and lots of compromises have had to be made, some of which I am deeply disappointed about, but all of which I understand, because we are here to sort out the economic mess that the other lot left us. I want to get on with doing that particular job. I cannot get myself excited about all this.
My hon. Friend is making remarks with which I must, unfortunately, disagree. In particular, I do not think that he has quite understood the nature of sovereignty. The United Kingdom Parliament is sovereign only in so far as it is not affected by decisions taken by the courts. Sovereignty is about the rule of law, which pivots between the courts on the one hand and Parliament on the other: we make and they interpret. When they get into the position of seeking, as they now are, through
the common-law principle and their judicial assertions to erode sovereignty by specific words, they are invading our sovereignty. In amending and eliminating that, as I seek to do, we would revert back to the supremacy that we have always wanted and insisted on.
Chris Heaton-Harris: I thank my hon. Friend for his intervention. However, during my 10 years as a Member of the European Parliament I gained a rough idea of what sovereignty was and how it is viewed by different member states within the European Union. His amendment would have some strength if we had market-tested it on the academic experts who appeared before the European Scrutiny Committee. I truly believe that if we had said, "This is what clause 18 states. What do you think of that?" they would all have said what we have said about the clause, which has been repeated a number of times. If we had asked whether adding this sentence to the clause would protect us in any way, I am pretty sure they would have said, "No, not really. This is all a matter of interpretation for the lawyers. We won't get anywhere like that."
Ian Paisley: Is not the reason why people do not get excited about this sort of stuff-the hon. Gentleman has put his finger on it-the way in which laws are changed in this country? He is right: it is not a bang theory. As someone who has worked in Europe and been a Member of the European Parliament, he will know that Europe changes laws in a very nuanced way. A European directive informs our officials what they should do and our officials make those changes, sometimes at the behest of our own courts. However, such changes happen as a result of a nuanced change in Europe. They are dumbing us down quite deliberately, so that this Parliament is no longer sovereign.
Chris Heaton-Harris: I agree, which is why I focused my attempts to amend the Bill on the parts of it where there are opportunities to get this place to debate matters more thoroughly. We should get the country more interested by having referendums on some of the big changes that happen in Europe. In the Lisbon treaty there is an awful clause-the passerelle clause-which has untold danger written across it.
There are many things that former Ministers for Europe did; I am talking not about the right hon. Member for Rotherham, but about a friend of mine, the right hon. Member for Leicester East (Keith Vaz) when he was Minister of Europe. The European charter of fundamental rights was meant to have no more relevance to British law than a copy of the "Beano," but it is now enshrined in the Lisbon treaty. I am very wary of the process and how it works, which is why I am keen on tightening up many other matters in the Bill, and have tabled amendments to do that.
None of those issues are helped, or indeed hindered, by clause 18. The Government's apparent intention is that the clause will combat any argument that parliamentary sovereignty is limited by EU treaties directly-in other words, that Parliament cannot act contrary to those treaties while they apply to the UK. A strict reading of clause 18 would not prevent someone from arguing that parliamentary sovereignty would be limited by the European Communities Act as applied by the courts. There are many different arguments on this matter, but I want to return to the simple fact that we can take from the
expert witnesses' testimony before the European Scrutiny Committee anything we like, to allow us to argue on any side of the issue. Sensibly, Professor Adam Tomkins submitted in written evidence to us that
"European Union law is far from being the only contemporary challenge to the doctrine of parliamentary sovereignty".
That is a very salient point. Human rights law, and indeed common law itself, would also pose challenges, as would different types of law coming from different places through different courts. Those challenges will not be affected by what clause 18 states, and will not be changed or challenged by the amendment if it is passed. We will still be in the same position.
I am concerned because I have a strong belief that we will not be able to negotiate strongly with our European partners until we start banging our fists on the table, reminding them that we are the second largest net contributors to the European Union and using the vetoes that we have. We should do exactly what the French and the Spanish do in all budgetary and other negotiations, which is to play their hand as hard as they can for the best interests of their country. That is what I would like our Ministers to do, and what I would like to believe they are doing. I want to hear from our Ministers that we will not only talk and be good at the rhetoric, but that we will start instructing United Kingdom Permanent Representation to the European Union to do the right thing by our people. Again, none of that is affected by clause 18 or the amendment tabled to it.
I humbly suggest to my colleagues who may be excited by the clause that perhaps this is not the battle we should be fighting. There may be other areas where we can give the people we represent the referendum they want, and we should be angling for that. Perhaps there are ways in which we can tighten up the Bill through other amendments to other clauses. The timing of the implementation of the Bill means that it will apply to decisions made by the Government in the future. Perhaps we can do a much better job by tightening up the rest of the Bill, rather than getting excited about this clause.
Maybe at some point in this Parliament we can have a referendum on Europe, which is something on which I have not had the opportunity to express my view. I would love an "in or out" referendum; hon. Members can guess which way I would vote in that. Based on where we are now and what we have, it would certainly be "out". I want the British people to have their say on our relationship with Europe and I also want them to be engaged in what is going on in their name in this place and in the negotiations. Other parts of the Bill, rather than this clause, are the place to try to bring that about.
Thomas Docherty: Several Members on both sides of the Committee have referred to England, the English Parliament and Britain. Let me gently remind the House that our nation state is the United Kingdom, and it is much more pertinent, particularly when discussing the issue of sovereignty, to get its name right.
My right hon. Friend the Member for Rotherham (Mr MacShane), who is an ardent and sincere pro-European and was a very good Minister for Europe, told the Committee that neither he nor the present Government would support giving the people of the United Kingdom
a referendum on Turkey's entry into the European Union because, in effect, we know that the outcome would be a no vote. I suggest to him, and to those on the Treasury Bench, that it is difficult for the people of our country to have great faith in the European idea if the Government of the day are simply going to say, "We know you won't agree with what we have decided, so we are not going to give you an opportunity to have your say." That is the type of challenge that we have faced over the past 25 to 30 years. I am probably, by the standards of my party, a Eurosceptic, but I do not believe, as was so well articulated by my right hon. Friend the Member for Rotherham and others, that our interests would be served by coming out of Europe, which is our largest trading partner. Whatever the flaws of the European Union-and there are many-the idea that we could have the same trading relationship with the other 26 nations if we were not part of a single bloc is ludicrous.
Several Members referred to the history of sovereignty. As the loyalists on the Government Benches traipse through the No Lobby later on, they might wish to take a moment or two, in between being given a pat on the back by their Whips for having been so loyal to their principles-I am sorry, their careers-to look at the exhibition on the wall outside to my left, which gives an account of the dispute between James I of England, who was also James VI of Scotland, and Parliament in 1621. I am sure, Mr Evans, that as a good parliamentarian you know that King James was very much in favour of close ties with the Spanish king and Parliament did not share his pro-European views. When Parliament protested to the King about his pro-European policies, he had the Journal of the House torn up because he would not accept Parliament's comments. In a letter back to Parliament, he said that the House need not
"meddle...with any thing concerning our government or deep matters of state".
I listened carefully to the hon. Members for Daventry (Chris Heaton-Harris) and for Dover (Charlie Elphicke), who seem to be the main advocates for clause 18, although they accept that it is a tokenistic gesture designed to mollify their Eurosceptic colleagues. However, having listened attentively to the hon. Member for Stone (Mr Cash), among others, I do not think that that gesture has worked. The hon. Member for Dover said that clause 18 probably does no harm. I am slightly surprised about that, because Labour Members are often lectured by Conservative Members about the need for less regulation, legislation and bureaucracy. It is setting the bar very low to argue for a clause on the basis that it does no harm. That is a slightly absurd position for any party, particularly one that is calling for less legislation. I am afraid that I cannot possibly support clause 18 if the best argument that can be put forward is that it does not do much of anything.
My hon. Friend the shadow Minister and my hon. Friend the Member for North Durham (Mr Jones) asked what the Government's motivations were in moving from a sovereignty Bill to a sovereignty clause. My hon. Friend the Member for North Durham suggested that it is the result of a coalition deal in which the Deputy Prime Minister, the hon. Member for Westmorland and
Lonsdale (Tim Farron) and others forced the Minister of State, Foreign and Commonwealth Office, the hon. Member for Taunton Deane (Mr Browne), to give up his long-held principles on the issue of sovereignty. Let me suggest to Government Members that the Notting Hill set, or the Cameroonians as they are fondly called by some, did not particularly support this in the first place, that it might be worth reflecting on whether it is unfair to blame the hon. Member for Westmorland and Lonsdale for having diluted the sovereignty Bill down to a clause, and that perhaps the Prime Minister and the Chancellor, who are really quite pro-European, as much as they may deny it, were also involved. I am disappointed that the Foreign Office Minister was unable to join us at any point this evening, as I understand that he told The Daily Telegraph some very interesting things about his views on the coalition and about how he and the Foreign Secretary have been getting on. Perhaps the Minister who winds up the debate can update us on how diplomatic relations are going in the Foreign Office at the moment.
In conclusion, will the Minister outline why the Government feel that clause 18 is so important and explain the impact of its deletion on the Bill overall and on the UK's relationship with the European Union?
Mr James Clappison (Hertsmere) (Con): Like several colleagues who have already spoken, I was a member of the European Scrutiny Committee that considered this Bill. I think that the Committee performed a very useful exercise, and I am very grateful to all the esteemed academics who came along to give evidence
The hon. Member for Dunfermline and West Fife (Thomas Docherty) was not entirely fair to the Government in his comments. I think that my right hon. and hon. Friends were absolutely right to ask the question, "Is there a need to entrench parliamentary sovereignty?" and to identify the threats to parliamentary sovereignty, which probably intensified during the period of the previous Government-threats coming not only from the European Union but from judicial activism and the role that judges have assumed for themselves in some aspects of our country's governance. Ministers need to ask themselves whether the clause, as it stands, satisfactorily meets the objectives of entrenching parliamentary sovereignty that they set themselves. Having taken part in the proceedings of the Committee, I am afraid that I have reached the conclusion that it does not.
My hon. Friend the Member for Daventry (Chris Heaton-Harris), who spoke very well, was good enough to refer to the various academics who came before the Committee. I am used to hearing from experts and academics evidence that is so wildly at variance that one cannot see how they could be experts in the same subject, let alone come to the same conclusion. However, the weight of the evidence from the experts to the Committee was almost unanimous; in fact, it was unanimous about clause 18. In their opinion, the clause did not meet the objectives that the Government had set for it. One or two of them went even further and said that because of its being restricted to the European Union in its declaration of sovereignty, it could possibly damage this House and parliamentary sovereignty as regards whether parliamentary sovereignty was part of common law and could be dealt with as such by judges. The evidence that we heard was conclusive that the clause does not meet the objectives.
"For all of these reasons, clause 18 as presently drafted may be seen as an opportunity missed. Parliamentary sovereignty is under considerable challenge from multiple sources. For those who seek its robust defence and protection, clause 18 falls substantially short of the mark."
Professor Craig from Oxford university, another distinguished academic with a different perspective, came to the same conclusion. He could identify only two occasions on which the clause could be relevant. One of those concerned what would happen in the interim if this country were ever to leave the European Union, and what the status of European Union law as opposed to British law would be in such circumstances.
Mr Cash: I very much agree with my hon. Friend's speech. Does he agree that the expert witnesses were all agreed on the judicial trend, except that the common law radicals among them wanted it, whereas the others-Tomkins and Goldsworthy-most emphatically did not? It was our judgment that the last two were right and that the common law principle people were wrong.
It was interesting that earlier in the debate, the hon. Member for North Durham (Mr Jones)-a Labour Member-seemed to put forward at some length the view that we should defend the judges and not the will of the people, as expressed through this House. That was an interesting proposition to hear from the Labour party, and seems at odds with its history. The conclusion that I have come to is that the clause does not accomplish the objectives that the Government set themselves. The question is how we can meet those objectives.
Mr Clappison: The amendments are not mine, although I would be happy to put my name to them. They were drafted after we received the evidence from the experts, and as a Select Committee member I believe that they are entirely consistent with what the experts told us. Other hon. Members might say more about that. The amendments would better meet the threat that was identified by the experts, for all the reasons that my hon. Friend the Member for Stone (Mr Cash) set out in his considered speech.
Mr David: I think that the hon. Gentleman is about to refer in detail to the amendments. Before he does so, will he tell us what the point was of the Government putting forward clause 18 in the first place if it does not meet their objectives, or his?
The hon. Gentleman would do as well to ask what is the point of his amendment. The gist of his speech was that the clause will achieve nothing and we are going to have a report on it every year saying how it has achieved nothing. This is not a party political speech, but I think that the Labour party could have
produced something a bit better than amendment 52, which is just a marking-time amendment that gave the hon. Gentleman the opportunity to make a few random points, but does not deal with the problems that we face. To be fair to Ministers, they have tried to face those problems.
The clause does not sufficiently address the situation because it is a restatement of the existing position, under which the present challenges to parliamentary sovereignty have developed, as has been said. It does not go much further than what people were told before the referendum on the European Union in 1975, to which hon. Members have referred. Interestingly, the Labour party said that it would never have a referendum and yet it was the Labour party that put the issue to the people after the negotiations had taken place and after the country had joined. The people decided to stay in the European Union. I am sad to say that I am old enough to have taken part in that referendum, which probably makes me past it, as the BBC would say.
To come back to my point, what the Bill says is not very different from what the British people were told in the literature sent to them by the Government of the day before that referendum. Fact No. 3 stated:
"The British Parliament in Westminster retains the final right to repeal the Act which took us into the Market on January 1, 1973. Thus our continued membership will depend on the continuing assent of Parliament."
I do not think that the clause does not go much further than that, but let us look at the changes since then. The other safeguards that were set before the British people included the following key fact:
"The Minister representing Britain can veto any proposal for a new law or a new tax if he considers it to be against British interests. Ministers from the other Governments have the same right to veto."
We need a more robust assertion of parliamentary sovereignty and I hope that, when he responds to the debate, the Minister will give a considered response to the amendments tabled by my hon. Friend the Member for Stone. I cannot see what the great obstacle is to accepting those amendments if our objective is to entrench parliamentary sovereignty. Why is there such reluctance to accept them? They are not wrecking amendments to undermine the Bill, but are there to improve it and to provide a more robust assertion.
Mr Cash: Does my hon. Friend mind my mentioning that, for reasons connected with the European Communities Act 1972, the Merchant Shipping Act 1988 was struck down by the courts because they said it was not sufficiently within the framework of European law? With the current judicial trends, that is the kind of situation that we can envisage on an array of matters contained in the status clause. Even if we disagree with a piece of European legislation, our legislation can be struck down if it is inconsistent with it.
Mr Clappison: My hon. Friend is right to point out that judicial activism is a living organism. That activism is not only in the courts of this country but in the European Court of Justice, which has a free-ranging way of interpreting European law. We must beware of its activities and the precedents it might set in interpreting any piece of EU legislation to which we give assent.
I draw the Committee's attention to the excellent speech of my right hon. Friend the Member for Wokingham (Mr Redwood), who talked of the distinction between sovereignty and the exercise of power, and whether the exercise of power can grow to such an extent that sovereignty becomes a piece of fiction and withers on the vine. He drew an interesting parallel with the erosion of the sovereignty of the Crown, through the continued exercise of sovereignty by Parliament. We must ask the same questions about the European Union, irrespective of the clause, because the power that we voluntarily concede to the European Union in so many areas will, over time, inevitably erode parliamentary sovereignty, however robust our reaffirmation.
Henry Smith (Crawley) (Con): My hon. Friend makes a powerful argument. As we have heard a lot this evening, we have an evolving constitution in this country, and an evolving European Union. Is now not the time, as the hon. Member for North Antrim (Ian Paisley) said, to send a clear signal domestically and internationally to Europe, that this Parliament reaffirms its sovereignty?
Mr Clappison: The interesting point that was missed out by the right hon. Member for Rotherham (Mr MacShane) in his contribution and by the Labour Government in their referendum literature, which tried to portray the European Union as simply a trade organisation akin to the World Trade Organisation, is that there is a commitment to an ever closer union. Attention was drawn to that at the time of the original referendum, but sufficient account was not taken of it. That commitment continues today. The European Commission has signed up to measures that promote ever closer union. Measures and proposals come before us all the time that transfer further power from this House to the European Union. There is no underground supply of new power that the House can create and hand out. Power is exercised either here or in the European Union, and over the years we have conceded more and more power to the EU, which must inevitably have an effect on sovereignty.
We need a reaffirmation of parliamentary sovereignty as far as the EU and other potential threats are concerned, but we also need Ministers who are prepared to stand up to the EU, say no and not make voluntary concessions. I am sorry to say that under the provisions of the treaty of Lisbon, we will see the creation of the European External Action Service, which can only result in more power and authority being drained away from our foreign policy and going over to the EU. The Union Jack is being hauled down throughout the world and the EU's flag run up in its place.
The EU and the European Parliament are champing at the bit to get their hands on our security policy, and the European Commission's second-top priority in its immediate programme is the creation of its area of freedom, security and justice. There is a constant stream of directives on the matter, and let us be clear that those
directives are not about picking a measure here or there that will improve the standard of justice. The point of the European area of freedom, security and justice is to create a common European legal system, which is being put together piece by piece. We currently have an opt-out from that, and Ministers need to find the resolution to maintain that opt-out and refuse to opt in to any further such measures.
I have not mentioned the list of financial regulations and proposals for economic governance that we heard earlier, but it is very long. If we sign up to all those individual measures, they will result in a transfer of power that will have an effect on our sovereignty. We need an improved sovereignty clause in the Bill, to send a clear signal of what we are about, and we need Ministers who will stand up to the EU. I am sure that they will do that, but they need to find the determination to do so and we need to support them in finding it.
Mr Jenkin: It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who made an absolutely outstanding speech. I should like to echo a great many things that he said, but brevity does not allow. I do, however, point out that the context of the debate is the fact that the current deluge of initiatives, the possible ending of opt-outs, the new legislation that is coming through and the expansion of the legal order do not require the expansion of competences. The competences for those things are already in place, so they will not trigger referendums.
My hon. Friend was right to emphasise a point that my right hon. Friend the Member for Wokingham (Mr Redwood) made. We live with an unwritten constitution, and institutions have powers that are not written down anywhere. If those institutions do not use those powers, suddenly the lights will come on one morning and they will be gone. That is what we have found during our membership of the European Union. Although it seems unthinkable that that could happen to the sovereignty of Parliament itself, we have to recognise that possibility.
The European Scrutiny Committee's extraordinarily powerful report on clause 18, and the unanimity of the evidence given to the Committee, underline the threat to the sovereignty of this Parliament from the behaviour of our own Government. I would very much like to have welcomed the clause, but I cannot bring myself to do so. It simply does not deliver the reassurance, the finality and the end to ambiguity that we promised our voters at the last general election.
My hon. Friend asked about the nature of sovereignty and power. People tend to use those terms interchangeably, but power is the ability to produce intended effects and can be used legally or illegally, with or without authority. Authority is the legitimate use of power, and legal sovereignty is the ultimate source of authority. This House has had legal sovereignty, pretty well uncontested, for the past 300 years or so, and that lies at the heart of our unwritten constitution and the democratic control thereof, as my hon. Friend the Member for Stone (Mr Cash) so ably explained.
My hon. Friend is making an excellent speech. Does he agree that when those principles were being established in the Bill of Rights in 1688 and 1689, the very reason why the courts were precluded from
interfering in internal proceedings in Parliament under article 9 was precisely to deal with that question? It set out that the courts must not get involved in trying to make determinations about parliamentary sovereignty. That was exactly what it was all about.
Mr Jenkin: Yes, and without wishing to digress, I point out that Lord Phillips, the current president of the Supreme Court, qualified article 9 of the Bill of Rights in a recent judgment by suggesting that the doctrine of implied repeal applies to it. The Supreme Court is questioning the Bill of Rights itself, and if we are not aware of how parliamentary sovereignty is now being questioned, we are not living in the real world.
I listened to the hon. Member for Caerphilly (Mr David) say that the clause merely reaffirmed the status quo, but the status quo is not a static situation. It is constantly fluid, and the rather lame attempt in the clause to address the situation is causing great concern.
Michael Connarty (Linlithgow and East Falkirk) (Lab): I could not resist coming into the Chamber when I saw the hon. Gentleman's name on the board. Could he explain to me how the status quo has changed since 1972, when Parliament basically took the decision to give primacy to EU law?
Mr Jenkin: What has changed is the nature of the legal order in the EU and the UK's relationship with that legal order. If it had been explained to Parliament in 1971, when the European Communities Bill was progressing through the House, that in future a UK court would be able to strike down an Act of Parliament in the name of the European Union, there would never have been any possibility that we would have joined. The development of the European legal order, with the huge number and range of powers that have been passed over from the UK to the EU, means that I fail to see what competences the EU does not now possess that it could ever possibly need in order to become a fully fledged state. If the hon. Gentleman does not recognise that the situation is fluid, I think he is living on another planet. He had better listen to the rest of my speech.
We know where sovereignty lies in the British constitution-here in Parliament. Under a written constitution, it does not necessarily lie with the people, although the authority to exercise it might lie with the people. I would argue that the authority of Parliament's sovereignty also rests with the people. Under the American constitution, sovereignty is dispersed among various institutions but ultimately rests with the judges. If we moved towards a written constitution, we would overturn the democratic constitutional settlement that we have enjoyed in this country and that has given us such flexibility and agility for 300 years. We would lock ourselves into a judicial system, which was fundamentally undemocratic because it would be ruled by judges, not the British people.
Ms Louise Bagshawe (Corby) (Con):
Having lived in the United States, I absolutely share my hon. Friend's concern about judges' encroachment on parliamentary sovereignty. However, in the context of the Bill, is not he in danger of making the perfect the enemy of the good? Is not clause 18 a great first step towards limiting the abrogation of the sovereignty of this Parliament by
the EU? By outlining a perfect situation, is not my hon. Friend in danger of making the enemy clause 18, which is surely a step in the right direction?
Mr Jenkin: I fully accept that my right hon. and hon. Friends on the Front Bench have attempted to take a step in the right direction. However, by the advice that they have accepted and their framing of the clause, they have not achieved the objective or made any progress, and they may have set us back. To put it bluntly, if clause 18 is all that Parliament has to say about its sovereignty, that is an invitation for the judges to come for us, as I shall explain.
Although sovereignty in the German written constitution lies in German basic law, Germany has the advantage of a constitutional court, which has always reasserted its right to determine whether European Community law is compatible with German basic law. Some of us have asked for some years why we do not have the same constitutional protection. We do not, and a sovereignty Act or clause was therefore deemed to be necessary. That is how some of us persuaded the leader of the Conservative party to make that an important part of his leadership election.
Where does sovereignty lie in the EU? Obviously, the origins lie in the member states, but over the years and from early on, the European Court of Justice began to lay claim to sovereignty. Back in 1963, in the Van Gend en Loos case, the European Court of Justice laid claim to a new legal order, whereby member states had subjugated certain delegated powers to the collective good, over which the European Union would claim supremacy. The doctrine was developed in the Factortame case, in which a UK court, with an obligation to implement European Community law, finished up overturning an Act of Parliament. At the time, one had to pinch oneself. Before that date, one could not imagine that one of our domestic courts could do such a thing, but it did.
Mr Cash: Does my hon. Friend also agree that, in the context of Van Gend en Loos, Costa and all the other cases that declaration 17, which is attached to the Lisbon treaty, covers, there is no attempt, in declaring the primacy of European law, to define the word "primacy"? Similarly, there is no need to define parliamentary sovereignty. My answer to the Government's point on that issue is, "Tosh".
Mr Jenkin: I will revert to that later. The great danger of the European constitution was that it was explicitly and legally autochthonous. It derived its authority from itself and its own roots. At least the Lisbon treaty reverted to the principle that authority comes from the member states, but it contains the important and dangerous declaration about not only the primacy of EU law, but the EU's constitutional supremacy over the constitutions of member states. That means our Parliament. I therefore fail to understand how anyone can say that there is no threat from the EU to the sovereignty of this House. That lot over there signed a treaty, without a referendum, that created such a threat. That has given rise to a demand for clarification about the sovereignty of Parliament in some form.
Many of my colleagues-I have talked to them in the Lobbies as well as hearing one or two speaking today-think that clause 18 is not the fight to have. If I may paraphrase my hon. Friend the Member for Daventry (Chris Heaton-Harris), he said that other clauses were much more important. It is not an either/or. It is suggested that somehow a referendum would be a panacea. People seem to think that as soon as we have a referendum-preferably an in or out referendum-we will be able to settle the issue.
The truth is that we may one day quite soon have a referendum on the European Union. It might be on the question of an additional treaty or power, and it might turn into a referendum on in or out. But the actual fact of a referendum will not solve anything. Instead, it will throw into flux the question of our membership of the EU, and the Government of the day will have to decide how to use that referendum to negotiate a new relationship with the EU. We will not stop the trains running through the tunnels and cancel all the flights and the trading. We will still have to have a relationship with the European Union.
Suppose that we wanted to take back control over our trade and to exit the customs union. We would need to have a renegotiation, sector by sector, of every part of the British economy's trading relationship with the EU. The point about a customs union is that there are no barriers-it is a single trading area. If we were to elect to have a separate trading area-to leave the single market-but we wanted to continue to trade with that market, we would need a trade agreement, so we would need to negotiate one. Immediately, we would need renegotiation.
We constantly hear it said, "Oh, if you Eurosceptics want to leave the European Union, why not be completely honest about it?" The pro-Euros-the people who are dedicated to the annihilation of the sovereignty and independence of this country-always put the issue as a binary question and, to an extent, they are right. It would be a self-fulfilling prophecy-a referendum would become a matter of leave or stay. If we are not sovereign in this Parliament while this country is a member of the EU, the only option is to jettison all the treaties and Acts, so we have very little flexibility.
What we as a Parliament need, in those circumstances, is the ability to negotiate partially, to pick and choose from a menu of options. But that would require Ministers to be able to legislate to suspend this EU instrument or that EU instrument. For example, they would need to be able to suspend EU City regulation so that we can get our competitiveness back. The Prime Minister's remarks on Monday, about his pro-jobs agenda and a flexible labour market, are another example. The coalition also says that it wants to renegotiate the working time directive to recreate the competitiveness of the British labour market. So Ministers would need the option of passing an Act of Parliament to suspend the application of certain EU instruments, but the question is whether that option will be available to them.
A little earlier, the beef ban was mentioned. I was a humble Parliamentary Private Secretary in the Scottish Office at the time, and we had a lot of discussion about how it could possibly be legal for the EU not just to ban the import of beef into other member states, but to ban the export of British beef from the UK to third-party countries. We were banned from exporting to anywhere,
and there was some discussion about whether we could suspend the effect of that legal instrument to stop the EU preventing us from exporting our beef to other countries. The advice was, "Oh no, Minister. You can't do that because it would put us in breach of the European treaties, infraction proceedings will be taken against us in the European Court of Justice and we will be found to have broken the law. Minister, I must advise you not to break the law, as otherwise you will be personally liable." Do Members get the point? Ministers have to obey the law and accept legal advice. Unless we sort out the sovereignty of Parliament and make it explicit that Parliament can suspend European Community law in selected circumstances, Ministers will not be in a position to exercise the freedom that Parliament has given them.
Mr Jenkin: We sought alternative legal advice and were assured that, in all probability, the domestic British courts would uphold Parliament's sovereignty and ability to suspend those legal enactments. But that is the point. We might have it now, but will we have it in the future?
Michael Connarty: Is the hon. Gentleman not willing to tell the full tale? The power given to the Commission under European Union law allowed it to stop France banning the import of our beef when it was cleared of infection. Is it not useful to have a common law that everyone agrees can be enforced in the other 26 countries? Without that, we might not be selling beef to Europe to this day.
Mr Jenkin: I fully accept that there is an argument and a balance of interests to be struck. The hon. Gentleman is arguing that it is always in our interests to accept a European Community legal order, but I am suggesting, quite reasonably, that it might not be. There might come a time when it is not in our interest to accept a European legal decision. Sadly, Governments tend to be driven by such a fear of confrontation with the EU that they will agree to anything in the long term. That is what has been happening, and this Government are thinking, "We have so many difficult fish to fry at the moment, we had better not confront them on this. This is the important thing we have to go for". As a result, more and more power seeps away, and I put it to him that sooner or later that has to stop.
As Martin Howe QC said in evidence to the European Scrutiny Committee, the Bill might stop us on the escalator, but it does not stop the escalator going up. A constant stream of powers and functions-not new competences or changes in voting arrangements that will trigger referendums-is still travelling in one direction to the EU. It is in the textbooks: it is called the doctrine of the occupied field. Once a power has been gained by the EU, the EU can only delegate it back to member states; member states cannot get it back. It is a doctrine formulated, of course, by the European Court of Justice in order constantly to consolidate the federal character of the EU.
Mr Cash: The occupied field is virtually full; very little more can be put into it. Does my hon. Friend also accept that one of the difficulties we are confronting is the question of political will, which we have not yet mentioned, and that the real problem, which emerged from some of his previous comments, is that we have been verging on appeasement for far too long?
Mr Jenkin: I totally endorse that comment by my hon. Friend. There might even be in this coalition, for reasons of political convenience, a will in the wrong direction. It is certainly not what the British people want or what we stood for in our election manifesto.
Provided that the UK courts recognise the sovereignty of Parliament, any legal dispute or clash between the British legal system, under the sovereignty of Parliament, and the European Community legal system, would be resolved by political negotiation. However, that is only the case so long as the UK courts recognise the sovereignty of Parliament and our right to suspend selectively legal instruments. That is a very important negotiation lever. But will that lever be available to Ministers in the future? Will that option be available to Parliament and future Governments? That is where the challenge lies. This is the crux of why we need a true sovereignty clause.
Let me revert once again to the much-quoted Professor Adam Tomkins. The hon. Member for Caerphilly said that he could not see any threat from the European Union to the sovereignty of Parliament. Professor Tomkins accepts in principle that we can legislate unilaterally to suspend Community instruments, when he says:
"If an Act were to be passed in terms such as these the courts could not refuse to apply it without asserting a power which our constitution has not hitherto accorded to them and to which no English court has yet laid claim. Should the issue arise, however, the response of the British courts cannot be predicted with certainty."
"if the United Kingdom refused to pay...a penalty"
"insisting on its national sovereignty".
Incidentally, that is something that has been recommended to try to sort out the budget by no less than Lord Heseltine, so he should want Parliament to be able to assert its sovereignty. However, I do not know whether he understood the consequences of what he said, because there is no legal way for the Government to withhold payments to the European Union unless we suspend the legal instrument under which we have to make such payments.
"European Union law is far from being the only contemporary challenge to the doctrine of parliamentary sovereignty."
By that he means that European Union law is indeed a challenge to parliamentary sovereignty, so I do not quite understand what the hon. Member for Caerphilly meant when he said what he said. Professor Tomkins went on-I am selectively quoting, but these are the relevant parts-to say that
"certainly nothing in clause 18...which addresses the problem of the further development of EU law at the hands of the European Courts",
"Let us not forget that many of the doctrines of EU law that have posed the greatest challenge for parliamentary sovereignty find their origin not in the articles of the Treaties, nor even in European legislation, but in the case law of the ECJ."
That takes us back to the Van Gend en Loos and Costa cases. When we reach a point at which the ECJ makes a judgment that is contrary to our national interest, should our Parliament not be able to say, without fear from our own courts, "I'm sorry, up with this we will not put"? That is the position that we need to be in. Professor Tomkins says:
"Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the ECJ."
Mr David: The hon. Gentleman makes the point that there is absolutely nothing in the Bill-and no indication whatever from the Government either-to say that the Government do not accept the primacy of European Union law. That is the fundamental point that we are at. I therefore take his comments to be a direct challenge to what his Government are proposing. My second point is that we are also talking about the duality principle, whereby European Union law has effect in this country only because of an Act of this Parliament. That is our position.
Mr Jenkin: I think I am safe to agree with what the hon. Gentleman says, and that is why clause 18 is not a sovereignty case, as he says. Therefore, if he agrees with everything that I am saying, I cannot quite understand why he does not want to make clause 18 a sovereignty clause. It would be quite easy to do so. I cannot for the life of me understand this. What could be less contentious than a declaration in the Bill that said, "The sovereignty of Parliament is hereby reaffirmed"? The idea that this would somehow open the issue of parliamentary sovereignty to judicial interpretation seems to me the daftest bit of legal advice of the lot. We make the statute and statute overrules everything, so if Parliament is sovereign and says in statute that it is sovereign, we clobber whoever challenges that; indeed-it is up to Parliament-we could actually sack the judge who tried to do that.
Mr Cash: The latest Act would prevail over all the previous Acts. Therefore, in so far as there was any uncertainty or ambiguity in any previous position, including the provisions of clause 18 as drafted, if they were separately enacted, the fact that we had passed an enactment reaffirming our supremacy would be not only a signal to the courts, but a requirement on them to give effect to it.
Absolutely, and it would not be open to Lord Hope or any others to say that the sovereignty of Parliament was being qualified bit by bit because the rule of judges was the fundamental principle of the constitution. It would not be open to him to say that, and Parliament would be able to make it clear to him explicitly that that was not in the constitution of this country. We should want to do that, because we are democrats and we believe that we hold sovereignty on behalf of the British people. We want a democratic political settlement in this country, not rule by judges. That is not just the view of a few people on the Conservative
Back Benches; I would hazard a guess that, when it comes to the crunch, it is the view of the British people-the constituents we represent. My hon. Friend the Member for Stone represents an all-party Committee that unanimously accepted much of what Professor Adam Tomkins said.
It is now time for Ministers to accept that they might not be right on this. As I said to the Minister for Europe, yesterday afternoon, I have been accused for 18 years of being much too pessimistic about the direction of the European Union, but when have I been proved wrong? That pessimism has been borne out time and again. That has not made me a bitter person; it has made me persistent. I congratulate my hon. Friend the Member for Stone on his incredible persistence, because one thing is certain: this argument would not have been advanced with such sincerity and intellectual rigour without his personal intervention. To that extent, it bears his imprimatur, but he speaks on behalf of the British people on these matters.
Mr Shepherd: When I first came into the House in 1979 it would have been inconceivable that anyone would even discuss the sovereignty of Parliament, because it was so much a part of the fabric of how the nation had been governed, and how it understood its Government, over nearly three centuries. We all know that the doctrine of the sovereignty of Parliament can be a tyranny. It is, after all, only a temporary majority in the House of Commons that can change our constitution and our laws. That knowledge was held by the House and informed the great debate that Lord Hailsham tried to start when he spoke of elective dictatorships, even though he was making a wider point about changes to the constitution. It was certain, however, that this House was sovereign, and that that could be borne because no House of Commons can bind its successor. That created tolerance for any actions that came to be seen as tyrannous, because they could not be held beyond a Parliament. That became a reality when we became a democracy.
I give a cheer for my right hon. Friend the Member for Wokingham (Mr Redwood) and my hon. Friend the Member for Stone (Mr Cash)-who should really be my right hon. Friend-for remembering the constitutional developments involved. The House has now lost any sense of narrative about who we are, what the House is and what this country is. I weep when I hear Labour Front Benchers-and the right hon. Member for Rotherham (Mr MacShane)-these days. Some of them were not here when the wonderful Peter Shore was in the House. In 1982, speaking on a referendum Bill just before the election, he stood up and said that it was inconceivable that a whole generation of British parliamentarians had given away the most sacred trust and the thing that they prized most: democratic self-government. That is always what this has been about: who is the master? The master is the people. I think that the American revolution was the third stage of the English revolution. In fact, we are the representatives of the people, and it is their continuity and their fortitude that we depend upon for the very survival of this House.
During my time in Parliament a lack of trust has developed in the protestations of Government that nothing is really changing. We are told that we do not have to worry our heads. Honourable Ministers have stood at the Dispatch Box and told me that nothing has
really altered, and that in substance we are where we were. That is not borne out, however, by what has happened. The line of direction-where this is all heading-has become painfully clear. It was clear long ago.
The occupied field was referred to earlier, and I see close by the Secretary of State for Work and Pensions, who made his reputation as a newcomer to this House of Commons and was advised that his career was ruined. That is one of the tortures that is extended to everyone. As I look around the House, I see many who were elected because they gave undertakings to their constituents that they profoundly believed that there was a need for an expression directly on behalf of the people on the issues that confront us. I am very interested to see how we drift when we come to the comfort of these Green Benches and we forget the solicitations of the prospect of office. We will forfeit the good will of those we count as our friends if we march towards a conclusion that is not now, I think, that of the British people.
Let me make the argument about why I think this reaffirmation of sovereignty is important. It is because I have seen in my time in Parliament-I am, of course, older than I look, to my regret-the degradation of the sense of the British people that ultimately, they control their Government, through general elections. Everyone in this Chamber will have met the disillusioned and the despondent. "It does not matter what we think," they say, "We are ruled by others."
I have already mentioned Peter Shore, but there was also Tony Benn, who had a fivefold construction for the question of whether we are a democracy. I have always refined the issue down to two of his questions, which seemed to convey the essence of the point. First, who makes the laws? Many of our people are deeply confused about that. Are they made in this place or elsewhere? The second question he asked was: how do you get rid of them?
The British people have faced those puzzles for a long time now. We do not know who makes the laws-I am talking about the generality of those whom we represent. They do not know. "Is it Parliament?" "No, it is the European Union." We play up to that game. On the Front Benches, they always pretend it is always someone else-"We are only doing what we have entered into because of a treaty obligation"-but treaties are, of course, subordinate to legislation. We never emphasise that enough. The Crown makes treaties. The common law is subordinate to statute. We do not state that loudly enough when we are confronted with judges who are now trying to propose that arrangements are not quite as we understood them. They know the tyranny that Parliament can be. We are the element that should make this bearable by the people whom we represent. We are their representatives. As I was reminded by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), the Second Treatise of Locke, which informed the American revolution, also informs our view of constitutions. It means that we can never give away that which is theirs. Yet we have done that throughout the time I have been in this House.
I support the amendment not because I want to, but because I think it unbelievable that Parliament is being asked to affirm the sovereignty that has been a feature of our constitution for 300 years, as interpreted by
constitutional writers, and that we are now seeing judges who equivocate. There are now two legal orders in the country: the European legal order, made up for themselves by the courts of the European Union, and our own legal order. I believe profoundly that the latter must take precedence, and that is the assertion of the sovereignty of Parliament that I should like to see in the Bill. I cannot imagine how the House of Lords will look upon this "expression of sovereignty". Sovereignty is a given, yet now it is questioned.
My final point relates to some of what has been said in the speeches to which I have listened today. The act of government, and the acts of Parliament, are an expression of self-confidence as well as self-government. What I have witnessed is a fearful cowering, and a series of Executives who accept things, with modifications, and "triumphs" are always declared. "Game, set and match" still rings in my mind. This is not about that, however; it is about the continuity of our own constitution, and our ability to govern ourselves through this instrument of Parliament. I think that the Members who expressed their views on scepticism and the like in their election manifestos should hold true to the electorate to whom they gave those undertakings and support the words in the amendment, however unnecessary they should be, in the context of the Bill.
The Second Deputy Chairman of Ways and Means (Dawn Primarolo): Order. Before I call the next speaker, let me remind the Committee that the debate will end at 10 pm. I want to ensure that the Minister has sufficient time in which to answer all the questions that have been put to him, and that the mover of the amendment has time to reply. May I ask the remaining speakers to bear that in mind?
Michael Connarty: As you see, Ms Primarolo, I am surrounded by a large number of papers. I have asked many questions during my time as a member of the European Scrutiny Committee, and I hope that I shall not need to rehearse much of the evidence that we received. I hope that Members have taken the trouble to read that evidence rather than merely bringing their prejudices to the Chamber, warmed up for the day.
This is a joke Bill, and clause 18 is the biggest joke in it. It is a silly Bill. As we have already heard, it gives us no ability to change anything. My hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty) quoted a Member who said today that at least the clause did no harm. In fact, it does nothing positive at all.
I respect the hon. Member for Aldridge-Brownhills (Mr Shepherd), who has often spoken very emotionally about sovereignty and our Parliament's ability to hold back the tide of European power. He emphasised that repeatedly during our debate on the Lisbon treaty, and he spoke very well tonight about many principles that we all hold dear. The joke lies in the suggestion that those principles-of self-government, the will of the people, and the things that we wish to do-have been filtered through clause 18 to give it some force, for it is clear that the clause makes no difference to what went before or what will come afterwards. Section 2(1) of the
European Communities Act 1972 gave primacy to EU law by the will of this Parliament. That will continue, regardless of whether we pass the Bill-and in particular, regardless of clause 18.
The joke is also being played on the Eurosceptics on the Back Benches, and I think that they know it. The joke is being played on them by the Government, who are suggesting that the clause somehow constitutes a response to the promises that they gave to their constituents. They are saying, "This Conservative-led Government will give you back some kind of sovereignty." As was pointed out by the hon. Member for Daventry (Chris Heaton-Harris), if we pass clause 18, these matters may be judged in court. Professor Tomkins said in his evidence that this was a dangerous clause because it put down a written constitutional principle, and any principle that is written down can then be challenged in court. The measure may therefore tempt Back Benchers to go to court when they feel they are not getting a hearing from Front Benchers.
If the Eurosceptics did not put their careers, and maybe their finances, before their principles, the true solution for them would be to leave the Conservative party, which is clearly not a Eurosceptic party-it is not going to challenge European sovereignty-and to join the UK Independence party instead. They could then try to build up UKIP into a force that people might vote for. It would be a party that wished to change things fundamentally by opposing and overturning the 1972 Act-perhaps by making laws in this place that challenge and ignore current EU law, as the hon. Member for Harwich and North Essex (Mr Jenkin) suggested-and thereby causing that to be judged in a court of law. Would a judge strike it down or not? Would the European Court of Justice try to strike it down by some other means?
That would come about only if UKIP Members were in the majority here in Parliament. It will not come about under this Government. The terrible thing is that this is a joke being played on the British people-on the people who voted for a Conservative party that cloaked itself in Euroscepticism without ever meaning to deliver any change in the relationship between the EU and this Parliament.
When the Lisbon treaty went through I said that it marked a tipping point, in that it was tipping power to Europe in a way that could not be changed unless we changed the 1972 Act, because we cannot get out of the deals that have been done. I was Chair of the European Scrutiny Committee at the time, and I think the rest of the Committee agreed with me.
I happen to like the progress that has been made, however, as I am a Europhile. I think that Europe is our saviour, rather than our enemy. I think that as part of Europe we will go forward as a stronger community and with a better culture than we would have if we broke away from Europe. I have no wish to see my world shrunk politically or culturally, or for the people's rights, defended by Europe, to be taken away by our going back into partisan fights between right-wing capitalists and left-wing statists.
Is the hon. Gentleman in favour of Europe-Brussels-being the sovereign Parliament, or
London or Scotland? As a Scottish MP and a Scottish Member of the southern Parliament, where does he want the major power to reside-Edinburgh, London or Brussels?
Michael Connarty: When I observe the behaviour of the current Scottish National party Government in Scotland, I see my world-where I live-shrinking. I see it shrinking to the point of stupidity, wrapped up in trivia and false history. That has no attraction for me at all. The forces of nationalism are very dangerous, particularly in small countries.
The Second Deputy Chairman: Order. Hon. Members are fully aware that only one Member should be on their feet at any one time, rather than everyone standing up and shouting together. Mr Connarty has the Floor. Perhaps Members will bear that in mind, and perhaps they will also bear in mind the clock, in order to ensure that the final Member to be called gets a chance to speak.
I believe that this joke is very serious and dangerous. The Front-Bench team can be very persuasive, and it has to convince people that this Bill, and in particular this clause, changes things-but it does not.
Michael Connarty: I will at the appropriate time. I specifically chose the questions that I asked again and again in the evidence sessions: will clause 18 change the way in which the courts interpret their duty to review legislation in the light of EU law under the European Communities Act-and if not, what is the point of having it? I asked that of everyone who came to give evidence, and they all said that the clause would not change things; when pressed, they said that it would make no difference. In fact, it is a restatement of where we are, and I accept where we are. This is not about giving up sovereignty to the EU or to anyone else; it is about our deciding in this House that we would give the EU power to make laws within certain spheres and that the laws then passed would have primacy. But it is the choice of this Parliament, and if this Parliament chooses to take back that power by doing something that says, "We will challenge this," we are able to do so.
The arrangement is not changed by this clause, but the clause is dangerous because it attempts to con the British people into thinking that it makes a difference. It is also dangerous because Professor Tomkins is right. He is a professor at the university of Glasgow, but he gives advice on constitutional affairs to the House of Lords and he has said that the clause invites a challenge and puts into a Bill something that people will use, perhaps for mischief or for some other reasons.
The clause does not change anything. We have these powers, and we could take them and use them; to put them into a Bill is to mislead people. That is shown in every piece of evidence now lying around me on this Bench: everyone we asked either said that in their written submission or answered the question by saying that it was true that the clause did not make a difference. I listened to the speech made by the hon. Member for Hertsmere (Mr Clappison), and he not only made some good points that agree with what I am saying, but cited some of the evidence that we received from the professors and others, who all said that the clause would make no difference.
It is not right to debate this matter without referring to the amendments, because that is the purpose of this section of the debate. The amendments in the name of the hon. Member for Stone (Mr Cash) and others just add to the confusion. They have drafted something that pretends to be different from the current situation but is not. Adding comments about common law and about preambles before the clause does not change the clause; it just says that under a law that those in this Parliament passed by their sovereign right we gave away certain primacy in law to the EU under section 2(1) of the 1972 Act. What we put before this, or what we put after it, does not make any difference.
Why does a Bill that says, "We will give the people of this country power to make choices, and power over the EU when it makes a proposal," not contain the right to have a referendum on enlargement treaties? Such treaties are the only ones that will definitely come before this Parliament in the next period, and probably for a very long time after the Lisbon treaty. Why does this Bill not say that that power to have a referendum is going to be given to this Parliament? Why does the Bill not provide an automatic decision that such a referendum must be held? It is because the Government are playing a joke, not only on the people in this place but on all the people of the United Kingdom. If the Government were serious,
that provision would be in the Bill. If they were serious, the Bill would contain something different from this clause. The amendments in the name of the hon. Member for Stone and others would not change that.
However, amendment 52, which was tabled by the Leader of the Opposition, is worth supporting because it proposes that the Government will report annually on how much of this Bill has been used to challenge anything coming from Europe. That would give everyone a chance to see whether the Bill is the joke that I say it is, or something of substance. I challenge the Government to accept the amendment. If they are serious and really think-I cannot imagine how deluded they would be to think this-that clause 18 makes a difference, I urge them to accept amendment 52, because we would then have a serious matter before us. We would have a Bill approved by the Government that would not just be a waste of time, because it would allow us, and the people of Britain, to judge annually whether it is a waste of time. That would make a major difference where nothing else would.
I am not angry about this, because I already believed that this is what would happen if we ever got a Conservative Government. I said that from the Government Benches as the Lisbon treaty went through, and I said to the person who is now Foreign Secretary and others that if the Conservatives ever got power they would not be the Eurosceptics that they pretended to be in opposition. This Bill and this clause show how true that is.
Mr Nuttall: I am conscious of the fact that this has been a long debate and that there are many points for the Minister to respond to so I shall keep my remarks short. Much of what I would have said has been admirably covered by my colleagues on this side of the Committee.
It is a sad indictment of how much power has drained away from the House that we have to debate a sovereignty clause. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd), who is no longer in his place, said that when he came to the House in 1979, such a debate would have been unthinkable. We must ask why we are in this position now. Obviously, it is because of the European Communities Act 1972, which was the start of the problem. As a result of that Act, the House handed over to Brussels-in those days it was not the European Union but the European Economic Community-the power to take decisions on behalf of the British people on matters of commerce. Over the years, that power has expanded to include many different areas.
I know from my constituents that time and again they are infuriated by the amount of legislation affecting their everyday lives that emanates not from Parliament but from the European Union. I congratulate the coalition Government on trying to do something about this problem, but, sadly, I fear it is too late-like shutting the stable door after the horse has bolted. The problem is that the powers have already gone and we are just putting a sticking plaster over what is sadly now a gaping hole.
I pay tribute to my hon. Friend the Member for Stone (Mr Cash) for attempting to stiffen and improve clause 18 on the House's sovereignty. We should not have to say that this House is sovereign-as Lord Tebbit said in an
article a few weeks ago, it is rather like the drunk in the bar saying he is sober. The House is sovereign and we should not have to keep saying so. The clause seems to do no more than state what we already know to be the position. It does not try to amend the law at all. It was sensible of the European Scrutiny Committee, as soon as it saw the Bill and this clause, to embark on a detailed examination of what they meant, sensibly calling witnesses before it. The House sets up Select Committees, so it makes sense to heed what they say. The Committee and its Chairman have tabled the amendments to the Bill and for that reason, among others, I will support their amendments.
There are doubts about why it is necessary to include clause 18 in the Bill. The amendments seek to clarify the position, and to make it easier for judges to examine the reasons why the clause has been included, should they ever be in the position of determining where sovereignty lies, as they will see that the House wants to ensure that it lies here with the House. We derive our power from the will of the British people, who give us power. I believe that that power should stay with us in the House, and not be passed to Brussels, but those are arguments for another day. Today is about how we make best use of the work that has been done by the European Scrutiny Committee to strengthen clause 18, and for that reason I support the amendments.
The Minister for Europe (Mr David Lidington): I am grateful to all right hon. and hon. Members who have taken part in today's debate: my hon. Friends the Members for Bury North (Mr Nuttall), for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris), for Harwich and North Essex (Mr Jenkin), for Aldridge-Brownhills (Mr Shepherd) and for Dover (Charlie Elphicke); my right hon. Friend the Member for Wokingham (Mr Redwood) and my hon. Friend the Member for Stroud (Neil Carmichael); and equally the hon. Members for Luton North (Kelvin Hopkins), for Caerphilly (Mr David), for North Durham (Mr Jones), for Dunfermline and West Fife (Thomas Docherty), and for Linlithgow and East Falkirk (Michael Connarty).
The debate has moved between passion and intense thoughtfulness, and both those qualities were demonstrated in the opening speech of my hon. Friend the Member for Stone (Mr Cash). Although he and I have our differences this evening, I want to place on the record my respect not just for the contribution that he has made to tonight's debate but for the commitment that he has shown in his chairmanship of the European Scrutiny Committee. He is a gentleman with whom I may disagree from time to time, but I happily salute him as a patriot and a champion of the rights and privileges of the British Parliament. We differ over which form of words and which draft of amendment will best accomplish the objectives that we seek. As today's debate covers both the question of approving clause 18 and the amendments and new clauses that have been tabled, I want to structure my comments first by making clear the Government's purpose in introducing the clause and then going on to address the individual amendments and new clauses.
Clause 18 addresses the concern that the principle of parliamentary sovereignty, as it relates to European Union law, might in future be eroded by decisions of the
United Kingdom's domestic courts. It would provide authority that could be relied on to counter arguments that European law could become an integral and autonomous part of the UK's legal system independent of statute. It responds to concerns that the doctrine of parliamentary sovereignty as it relates to EU law may not be unassailably absolute, and may be qualified. The concern is that the doctrine of parliamentary sovereignty is part of common law-a point illustrated by the report by the European Scrutiny Committee and the evidence it took, and clearly a matter that is subject to intense academic debate and contention.
The risk is that British courts might, in future, be attracted to the argument that European law no longer takes effect in this country by virtue of an Act of Parliament but has become entrenched in our legal system, enjoying an autonomous status-in the jargon, it has become a basic "grundnorm" underlying the UK legal system, to be applied by our courts and against which ultimately UK legislation falls to be measured.
There are three main sources for that concern. The first stems, yes, from the arguments run by the counsel for the prosecution in the so-called "metric martyrs" case of Thoburn v. Sunderland City Council. It is worth saying a little about that case because the issues raised were of great significance. The prosecution argued that the European treaties' effect in domestic law did not depend-merely, at least-on the terms of their incorporation by the European Communities Act 1972 but, to a decisive extent, on the principles of European law itself.
The argument was that European law had been entrenched rather than merely incorporated, by virtue not of any principle of domestic constitutional law but of principles of Community law already established in cases such as Van Gend en Loos v. Nederlandse Administratie der Belastingen and Costa v. Enel, to which hon. Members have referred in this debate.
If that argument had prevailed and if it were to prevail in the future, we would need to think about what the practical effect might be. For example, let me take the prohibition on discrimination on grounds of nationality set out in article 18 of the treaty on the functioning of the European Union. Our courts have recognised that the provision has direct effect in the United Kingdom. Under the prosecution's principle in the "metric martyrs" case, the courts would interpret that prohibition and seek to enforce it as part of UK law, even if Parliament were to remove the statutory mechanism by which it had been given effect in the UK, by either repealing or amending the European Communities Act 1972.
But if we pass clause 18 and enshrine in statute the principle that the authority of European law derives solely from Acts of Parliament, then the courts could not do that because article 18 could have direct effect in the UK only because Parliament had provided a statutory mechanism to allow that. If that statutory mechanism were to be repealed without replacement, there would be no basis on which it could be given direct effect in this country. Although those arguments were rejected by Lord Justice Laws, they could well be made again in future cases.
That was a case of first instance and we do not know what might happen in future. Does my right hon. Friend accept the reasoning of Lord Bridge in
Factortame? He clearly stated that our adherence to the principles that flowed from an Act-the European Communities Act 1972-and therefore his judgment was based on a voluntary acceptance by this House, in its sovereignty. I add the words "in its sovereignty", because that is the key issue.
"It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law...falls to be recognised and available in law in the United Kingdom."
Mr Lidington: What is different about clause 18 compared with the current legal position is that for the first time it provides a clear statutory point of reference, to which the courts would have to have regard in considering any cases in future that were comparable to that brought before Lord Justice Laws.
The second source of the concern that has been expressed are the various obiter remarks, to which my hon. Friend the Member for Stone and others have referred, made by senior judges such as Lord Hope and Lord Steyn, albeit in cases that did not deal directly with European Union law. My hon. Friend starkly expressed his concern that at least some members of the senior judiciary had an agenda that deliberately set out to challenge the historic privileges and authority of Parliament.
Mr Cash: The reference that the Minister slipped in about Martin Howe is quite unreasonable. What Martin Howe said in his written evidence is that he thought that the provision, if it were to be made properly and correctly, ought to be done within the framework of the European Communities Act 1972.
Mr Lidington: I will come to that precise point later in my remarks. The point I was making a moment ago was that, in a pamphlet published in 2009, Mr Howe expressed very similar concerns to those expressed today by my hon. Friend and others that there is a serious risk-if not an immediate one-that there would be further challenges to the principle that it is only parliamentary action that gives authority to EU law in this country.
We have taken advice from lawyers across Government, not just from those in the Foreign and Commonwealth Office-although I would be the first to defend the lawyers in my Department from some of the criticisms made during the debate. The Government's analysis has led us to the conclusion that to date there is no persuasive legal authority to support the contention that the doctrine of parliamentary sovereignty in relation to EU law is no longer absolute. However, there is a need to put the matter beyond speculation for the future. By confirming in statute that directly effective and directly applicable EU law takes effect in this country only by virtue of an Act of Parliament, we are putting the matter beyond doubt for the future.
Mr Lidington: Certainly not. I am saying that we made sure we took legal advice from all the relevant Departments across Whitehall. The views I am expressing-what is in the Bill-reflect the legal advice that has been given, as well as the political decisions that Ministers have taken about what should be included in the legislation.
As I said on Second Reading, clause 18 is declaratory or, as my hon. Friend the Member for Dover said, it is a codification. The clause creates a statutory point of reference to which any future court that considers an argument about the source of authority for European law in this country must have regard. It reflects the dualist nature of our constitutional system, under which international obligations-including those assumed by the UK through our membership of the European Union-are not self-executing within the UK legal system. The fact that the UK is dualist means that European Union law is enforceable here only because this Parliament has legislated to make it so. The clause makes it clear that such European law has authority only by virtue of the fact that Parliament has, through its Acts, decided to import it into the domestic legal order.
In the event of any litigation arising where a party sought to claim that directly applicable or effective EU law had an autonomous legal existence in the UK, the other party would be able to counter that argument by referring to clause 18 and, similarly, judges would take this into account in addressing the arguments raised in their judgments.
Mr Cash: I am most grateful for the Minister's final remarks about the judges. He tried to discharge the point, which I had already made, about the argument that comes from the judges in the Supreme Court and the judicial trends-there was pretty well unanimous agreement on those in the evidence that was given to us-towards a diminution of parliamentary sovereignty through the courts. He must accept that the very fact the judges made those remarks with regard to the Hunting Act 2004 and the case of Jackson in 2005 not only indicates but makes it a darned certainty that they will say such things in respect of other case law, irrespective of whether it is in the European framework or not.
Michael Connarty: Clause 18 says that we gave away our primacy in terms of European law in section 2(1) of the 1972 Act. What is being done in the clause to take back from Europe the power that the people were promised would be taken back?
Mr Lidington: The hon. Gentleman is pre-empting the next section of my speech in which I want to make it clear what clause 18 does not do. I am not going to try to pretend to the Committee that it seeks to accomplish things that it does not do and is not intended to do.
The clause does not alter the existing relationship between European and UK domestic law, nor does it affect the primacy of EU law-a concept developed by
the European Court of Justice well in advance of our membership of the European Community, and to which this Parliament gave effect in UK law as defined under section 2(4) of the European Communities Act 1972. My hon. Friend the Member for Harwich and North Essex was right to say, in quoting Martin Howe, that the clause would not stop the escalator, but that it would stop things getting any worse, as my hon. Friend would describe it, than the current position. It is worth saying that although Mr Howe made that comment about the escalator, he also said:
"In my view Clause 18 as presently drafted is valuable and is almost certainly sufficient to achieve its intended purpose of preventing judicial drift towards the erosion of the doctrine of Parliamentary sovereignty."
As our judges have recognised to date, Parliament remains free to amend or repeal the 1972 Act, or indeed other Act of Parliament, at any time. But of course the political reality is that if we chose to repeal the 1972 Act or to disapply unilaterally a particular piece of European Union legislation, there would be a serious crisis in terms of this country's relationship with the European Union. That might be a state of affairs that some hon. Members would wish to bring about and see as an opportunity, but that is not the Government's aspiration.
Clause 18 will also not alter the rights and obligations assumed by the United Kingdom on becoming a member of the EU, and it will be in line with the practice of other member states such as Germany, whose federal constitutional court ruled in 1993, in the case of Brunner v. European Union, that Community law applies in Germany only because laws passed by the German Parliament say that it does. Similarly, in Denmark the supreme court held in its judgment of 6 April 1998 in the case of Carlsen v. Rasmussen that Community law applies in Denmark only by reason of, and to the extent permitted by, the Danish constitution. Therefore, although they have a different constitutional framework from that of our country, other member states have given effect to EU law through sovereign acts.
I want briefly to deal with two challenges that were made to the Government's case: Professor Tomkins's comments about partial legislation being worse than no legislation at all, and why we do not explicitly make this provision an amendment to the 1972 Act. On Professor Tomkins's argument, we disagree with his conclusion. The Government are clear about the particular mischief that we are seeking to address, which is to put beyond speculation the fact that this country has a dualist system and that the rights and obligations under the EU treaty, in order to be justiciable before our courts, have to be incorporated in our system through an Act of Parliament. It has never been the Government's intention in bringing forward this legislation to address the broader issues of potential challenge to parliamentary sovereignty over things such as human rights legislation or the impact of the devolution settlements, to which the European Scrutiny Committee drew attention in its reports.
The confusion arises in thinking that it is somehow possible to segment European law from domestic law when in fact the European Communities Act itself is domestic law, and the judges who are likely to adjudicate on the sovereignty of Parliament are our own domestic
judges. It may well be an adjudication on a European case, or it may well be on another case, but unless the Minister addresses the potential challenge from the Supreme Court on whatever case, particularly under European Community law, he is not addressing the problem.
Mr Lidington: My hon. Friend is inviting me to go much further than my Department's responsibilities. I am very willing to put on record that, contrary to Professor Tomkins's fears, the Government, in choosing to legislate in this area, have no intention of indicating that other challenges to parliamentary sovereignty are unimportant or insignificant.
Hon. Members have asked why we are not amending the European Communities Act 1972. The principle that we applied is that what is important is what the clause does, rather than where in the statute book it is placed. Although the 1972 Act is the principal statute by which European law is given effect in this country, it can be argued that it is not the only statute that has that effect. Statutes as disparate as the Trade Marks Act 1994, the Chiropractors Act 1994, the Enterprise Act 2002 and the Equality Act 2006 make reference to giving effect to European law. Some provisions of the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 place Ministers from the devolved Administrations under an obligation to act in accordance with European law. That is why we have made reference in the clause to Acts of Parliament in a generic sense, rather than to the 1972 Act in particular.
Mr Cash: I thought that my right hon. Friend would give way at that point, because he could see that I could not resist making a point. The status of EU law provision-the stand-alone arrangement that is unnecessary in its present form and achieves nothing-refers to the entire gamut of European legislation. If I may say so, it is exceedingly disingenuous of him to trot out the argument given to him by his lawyers that there is a comparison with the Chiropractors Act 1994.
Mr Lidington: We wanted to be certain that the clause caught every piece of legislation that it can be argued gives effect to European Union legislation in this country. My hon. Friend would have been the first Member of this House on his feet to criticise me had I left the loophole of legislation other than the 1972 Act that it can be argued has such an effect.
I shall turn to the specific amendments, starting with amendment 41, which was tabled by my hon. Friend. The amendment seeks to affirm the overall principle of parliamentary sovereignty in relation to EU law. I maintain that there is the difficulty that there is no existing statutory definition of sovereignty. The clause deals with one specific practical expression of parliamentary sovereignty. To introduce the word sovereignty more generally would invite speculative consideration by exactly the kind of ambitious judges whom he fears.
"the sovereignty of Parliament is ultimately a judicially recognised 'political fact'. And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly."
"sovereignty should be seen, not as judicial recognition of political fact, but as a rule of the common law based on reason just like any other rule of the common law."
Something based on reason is self-evidently subject to change. Therefore, I do not believe that passing the amendment would provide the safeguards that my hon. Friends seek. I do not think that it would achieve the purpose as successfully as the Government's wording in the clause.
Dr Julian Lewis: My right hon. Friend is doing a grand job and has already persuaded me that I should not refuse to vote for clause stand part, but he has not persuaded me not to vote for amendment 41, tabled by my hon. Friend the Member for Stone (Mr Cash). Why, if that amendment is defective in the way that the Minister describes, did our Front Benchers approach my hon. Friend when we were in opposition, take over an identical amendment that he had drafted and run with it extensively in both Houses?
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