On 11 January, Bill Cash MP made the following speech in the House of Commons on the Committee stage of the European Union Bill.
Mr William Cash (Stone) (Con): I beg to move amendment 41, page 11, line 25, at end insert-
‘(1) The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed.’. …
Mr Cash: The group relates specifically to clause 18, and I shall explain a little of the amendments’ purpose.
Amendment 41 would insert at the beginning of the clause, which covers the status of EU law, the simple words:
“The sovereignty of the United Kingdom Parliament is hereby reaffirmed.”
Amendment 10 would add to the end of the clause the simple phrase, “and not by virtue of a common law principle”.
The effect of that would be to prevent the courts from applying a common law principle, which has become entrenched in certain thinking in influential academic and legal circles, and in the Supreme Court. The explanatory notes suggest that it has also become entrenched in the Government’s thinking. I understand that the explanatory notes may be in the course of being corrected, as the European Scrutiny Committee and one of its main witnesses suggested. However, precisely what effect that will have remains to be seen. Perhaps we can debate that this afternoon. After all, the explanatory notes may have been prepared to aid interpretation of the statute – statute law is open to interpretation by the courts – but will the removal of the relevant words necessarily have the effect of preventing those most distinguished and eminent Supreme Court judges from departing from principles and doctrines to which they have apparently become wedded?
The two new clauses are directly relevant to clause 18 to ensure parliamentary sovereignty in view of the continuing trend towards judicial interpretation along the lines that I have already expressed. It is a matter of grave concern to many of us – far more than may turn up in the Lobbies today – that the courts, on a range of matters, have accumulated greater and greater influence, and, indeed, action, in relation to their judgments on Acts of Parliament. I refer not merely to interpretation or construction of the words but the underlying judicial activism, sometimes of a quasi – political nature. That has caused a great deal of concern, which has arisen particularly in the case of the Human Rights Act 1998. Although we are not discussing that today, there is an analogy because the charter of fundamental rights, which mirrors the Human Rights Act, is part and parcel of the arrangements under the Lisbon treaty. In that area of law, if there were any inconsistency between legislation – many centuries old and based on well established democratic principles – passed in this Westminster Parliament, would the judiciary presume to make judgments about the nature or legal effects of parliamentary sovereignty?
Mr Edward Leigh (Gainsborough) (Con): Will my hon. Friend deal with the canard put around by Foreign Office lawyers that if his amendment is passed and we add talk of sovereignty to the statute, judges will be given a chance to intervene because it is not mentioned elsewhere? Surely the issue is clear: Parliament is sovereign, so why do we not just pass this amendment?
Mr Cash:My hon. Friend is right and I am grateful to him. Indeed, I suspect that many other colleagues, not only on the Back Benches but among the ministerial ranks, agree with me strongly. I also suspect that many Opposition Members feel exactly the same way. I hope, although without too much confidence, that one or two Liberal Democrats might take a similar view, although I would not wish to over-egg the pudding on that score.
Mr Bernard Jenkin (Harwich and North Essex) (Con): I happened to be doing a television interview earlier today with Mr Chris Davies, who is a Liberal Democrat MEP. When I asked him what the problem was with incorporating this amendment in the Bill, he said he could not possibly disagree with it. So there are Liberal Democrats who agree, and I simply do not understand why the Government object.
Mr Cash: I am grateful to my hon. Friend for that point. Indeed, I would be fascinated to know what would happen if any hon. Member were to appear before their local association and say, for example, “I just want to inform you that the sovereignty of the United Kingdom Parliament in relation to EU law is not reaffirmed.” I think they would get a dusty answer from their constituents, especially as they elected that person to represent them in Parliament.
I am concerned to ensure that the courts are excluded from the construction or interpretation of the nature or legal effect of parliamentary sovereignty. It is of course still inherent in the arrangements, even after the Constitutional Reform Act 2005, that the judiciary are not only quamdiu se bene gesserint, as the Latin has it – in other words, they hold their position during good behaviour – but, in exceptional circumstances, it would be possible for judges to be removed, by an address by both Houses of Parliament, if they were to depart from that dictum. I would have said that some of the remarks relating to the sovereignty of Parliament that have emanated from some judicial circles in recent years have trespassed closely on the question of whether Parliament is the supreme law-making body in this country. I include that new clause because I want to exclude the courts in relation to section 3 of the European Communities Act 1972, but I am not attempting to extend its range beyond that.
I find it strange that the Government say that the Bill does not attempt to embrace the whole doctrine of parliamentary sovereignty. Of course it could not have done so, because the scope of the Bill would prevent that. For practical purposes, my amendments are all devised and worded in relation to EU law, but without prejudice to my concern about the fact that justices of the Supreme Court should not pick and choose between the different kinds of statute to which they apply these attitudes if they were to gain critical mass.
New clause 4 states:
“Nothing in Part 3” – the provision relating to the status of EU law – “adversely affects or shall be construed as affecting the existing constitutional law of the sovereignty of Parliament”.
I then add, for the purposes of the scope of the Bill, the words “in relation to EU law.”
I have provided a fail-safe mechanism and firewall against any attempt by the judiciary to interfere with the sovereignty of the House. I have done that not simply because that sovereignty is centuries old in its derivation, but because, certainly since the mid- 19th century, our democratic representation, which leads Members of Parliament to convene in this Chamber and pass laws, has derived its supremacy exclusively from that democratic right.
…
Mr Cash: The amendments, if passed, would enable us to deal with those questions. In point of fact, I intend to come on to the implications of my new clauses and amendments in relation to a number of matters, including what I regard as the totally unnecessary and unacceptable jurisdiction being given to the European Court and other European institutions over the City of London. I have been talking about that in national newspapers for the best part of two and a half years.
Mr Jenkin: Does the previous intervention not underline why we need my hon. Friend’s amendment? There might be no doubt in our minds that Parliament is sovereign and that the functions and powers to which he has just referred are simply delegated to the European Union by this sovereign House, but because such misunderstandings exist, it is time for the House to make a clear declaration that sovereignty and ultimate legal authority still rest with the House of Commons.
Mr Cash: I am deeply grateful to my hon. Friend for his intervention, because he is exactly right. Since 1972, there has been an accumulation that has now turned into a tsunami – a sort of Pied Piper of Hamelin, whom we all remember from our childhoods-as the accumulated rumbling and tumbling has gone on and on. We are now faced with a continuous stream of legislation divesting the House of its right to legislate, and this is an opportunity-one not invented by me in terms of the clauses proposed by the Government – to enable us to regain the sovereignty that belongs to the people of this country, the voters in general elections and Members of Parliament elected to the House for the purposes of protecting those voters’ interests.
Mr Denis MacShane (Rotherham) (Lab): Will the hon. Gentleman give way?
Mr Cash: I certainly will. I am always glad to see the hon. Gentleman. MrMacShane: Just as we start this interesting debate, I would like to know whether the hon. Gentleman accepts the broad principle of pacta sunt servanda.
Mr Cash: To which I would simply reply: “Et sine lite loquax cum Palladis alite cornix”. Mr
MacShane rose –
The Chairman: Order. We cannot have two hon. Members on their feet at the same time.
Mr Cash: I was talking about the crow that was quacking on the fence.
Martin Horwood (Cheltenham) (LD): Is the hon. Gentleman now in favour of establishing a common European language?
Mr Cash: As long as it subscribed to the classical arrangements that were provided for when we all actually spoke Latin properly, the answer would be yes.
There is obviously-we all know it in this Committee, and so do those outside this place, because it has been well publicised – a disagreement between the Government, the European Scrutiny Committee, of which I have the honour to be the elected Chairman, and me personally, regarding the meaning, nature and effect of clause 18. The disagreement falls into several categories, all of which can be categorised as matters of national interest. That is why I trust that Members of Parliament from all parts of the Committee will listen carefully to the arguments and vote according to these, and not according to any instructions that have been issued by the Whips.
Mr MacShane rose –
Mr Cash: With the greatest respect, we have already had one intervention from the right hon. Gentleman. Perhaps he would be kind enough to wait.
It would be ironic to say the least if the slogan “Working together in the national interest”, which we saw at our party conference, were to become “Working together against the national interest”. I do not believe that any Member of Parliament or any Minister would agree that the coalition – a “temporary alliance”, according to the “Oxford English Dictionary” – should be employed in any way to pass legislation that would undermine parliamentary sovereignty. Incidentally, I am somewhat appalled at the lack of coverage not of this debate but of the European Scrutiny Committee report when it came out, given the fundamental nature of the issues at stake, and the quality of analysis not only in the report itself but in the evidence given to us by probably the most distinguished constitutional experts in the land.
I will turn first to the constitutional and legal issues that clause 18 raises and which were carefully considered for several weeks by the European Scrutiny Committee, which received evidence on a completely even-handed basis, which, because of the fundamental importance of the issues to our constitution and our democracy, was well worth doing. In the course of the proceedings it became clear that many of the constitutional experts concerned felt that, at the very least, clause 18 was completely unnecessary. The most compelling evidence – the evidence that we received from Professors Tomkins and Goldsworthy, along with a number of others – was that clause 18 was hazardous and dangerous, particularly in the light of the Government’s assertions.
The issue of parliamentary sovereignty has been a matter of fundamental concern, importance and action since the 17th century. However, parliamentary sovereignty acquired a special and fundamental significance with the extension of the franchise in the mid-19th century, from the Reform Act of 1867 onwards – for example, through the Reform Acts of 1885 and 1884 – and is undoubtedly the democratic basis of the United Kingdom constitution. However, irrespective of its now democratic basis, parliamentary sovereignty has become increasingly questioned recently – and only very recently – by reason of judicial assertions. Although on the tin, as well as in many repeated statements, we were told – I refer now to my hon. Friends on the Conservative Benches-that we would be getting a sovereignty clause or even a sovereignty Bill, clause 18 is emphatically not a sovereignty clause. For reasons that I will explain, the clause will actually undermine parliamentary sovereignty by encouraging judicial supremacy. The explanatory notes put forward the dangerous notion that parliamentary sovereignty is a “common law principle”, and therefore subject to judicial authority. However, even if the explanatory notes were disavowed on this matter, the problem of judicial assertions relating to parliamentary sovereignty would not disappear.
Mr Kevan Jones (North Durham) (Lab): The hon. Gentleman and his Conservative colleagues stood in the election on a manifesto that said on page 114: “We will introduce a United Kingdom Sovereignty Bill to make it clear that ultimate authority stays in this country, in our Parliament.” Is he therefore disappointed that the Government have binned that part of the manifesto that he stood on?
Mr Cash: Not disappointed-absolutely appalled. The sovereignty of Parliament is the most important principle of the United Kingdom constitution, and has been since 1688, as confirmed by constitutional authorities without question until very recently. Indeed, the greatest judge in recent times, the late Lord Bingham, who died only a few months ago, stated in the Jackson case in 2005:
“The bedrock of the British constitution is…the supremacy of the Crown in Parliament.”
I fear that the sovereignty of Parliament is in grave danger, however. There are judges in the Supreme Court whom Lord Bingham himself felt it necessary to name in black and white in chapter 10 of his book “The Rule of Law”, published shortly before his death. He publicly criticised their judgments and their attitude to parliamentary sovereignty. In the Jackson case, Lord Hope, who is now deputy president of the Supreme Court, said that
“parliamentary sovereignty is no longer…absolute”.
He went on to say that, “step by step”, it “is being qualified”. In his view, the rule of law, enforced by the courts, is the ultimate controlling factor on which our constitution is based. Lady Hale, who also remains on the Supreme Court, agreed with Lord Hope. The fact that that case did not relate specifically to EU law does not alter the fact that the views expressed by Supreme Court judges can be as easily applied to cases involving EU law as to another judicial matter, contrary to the suggestions being put forward by the Minister in evidence earlier. It is not an answer to the question, as the PrimeMinister has sought to suggest in a letter to me, for the Minister for Europe to state in his evidence to the European Scrutiny Committee that the Government are not seeking, and have never sought, to provide
“an all-embracing doctrine of Parliamentary sovereignty.”
The Supreme Court justices, who have a process of selection outside the Judicial Appointments Commission, have a significant critical mass of those with profoundly Eurocentric credentials. I mention this because the sovereignty of Parliament, which is a constitutional doctrine of the United Kingdom, is also under threat by virtue of the European Communities Act 1972. The construction placed on legislation emanating from that Act affects the daily lives of the electorate in almost every sphere of presentday activity. According to the Government themselves, such legislation affects at least 50% of all economic laws in the United Kingdom, including those that impose burdens on businesses small and large that, according to the best estimates, have cost £124 billion since 1998.
The threat comes not only from the common law radicalism of such judges but from the EU law itself, which claims constitutional supremacy over member states’ constitutions. We have also seen cases of terrorists appearing to get away with things and people not being deported when they should have been, as well as a whole range of other matters occurring under the European Human Rights Act, which, as I have said, is mirrored by the new charter of fundamental rights in the Lisbon treaty. We are witnessing a vast increase in the volume and impact of such legislation on the British people, and this is resulting in the anxieties I have described. Those anxieties could be allayed by my amendments, however, and it is time for us to turn the tide and make it clear exactly where we stand.
Sir Malcolm Rifkind (Kensington) (Con): My hon. Friend is undoubtedly correct to say that the role of the courts has increased significantly, but is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.
Mr Cash: I am extremely grateful to my right hon. and learned Friend for that. I agree with the sentiment; the problem is the practice. The difficulty is not only the tsunami of laws: attitudes within the Supreme Court, particularly since the Constitutional Reform Act 2005, have so enhanced its independence that, in conjunction with the arguments it is beginning to present, very serious questions are raised. It was the same with the Bill of Rights of 1688 – it was not an Act, but it is regarded as one of the central instruments of our constitution – when Parliament said that it was going to put its foot down and set down a marker that Parliament was sovereign. That is what I am saying in my amendments.
Dr Julian Lewis (New Forest East) (Con): Our right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) is surely correct in saying that there is always what the Business Secretary would perhaps call the nuclear option of withdrawing completely. Is not one of the reasons why we, as a sovereign Parliament, are feeling more and more repressed by this sort of judicial activist legislation that things are so often put forward as if they were absolute rights whereas they should be viewed as qualified rights? That is why a common-sense Parliament would say that someone had abrogated some of their rights by bad behaviour, for example, but these courts say that the rights are absolute so that no matter how badly people behave, they cannot, for example, be deported.
Mr Cash: My hon. Friend makes a very important point, which I think allMembers will want to take into account. As a lawyer myself – there are many other lawyers in the Chamber – I know that there always exists within the framework of the judicial or court system the adversarial nature of arguments based on words. One reason I came into this House after a fairly lengthy career in the law was that having had so much exposure to parliamentary legislation and its impact on people, I was conscious of the fact that however clever or adroit a lawyer might be in expressing his opinion in court or in his practice, the impact of law on the people who receive it – the voters – was quite a different matter. The common sense mentioned by my hon. Friend the Member for New Forest East (Dr Lewis) provides a salutary reminder of the necessity to remember that we in this House are Members of Parliament. We are legislators; we are not lawyers.We are seeking to apply principles that will enable this country’s people to be better governed.
Unfortunately, much of our legislation emanates from the European Union, for example, on issues such as food labelling. My hon. Friend the Member for South Norfolk (Mr Bacon) has just proposed a privateMember’s Bill to deal with that issue, but his Bill has no chance of becoming law unless we disapply the European element and pass it in this House. That is the problem, and it is, in part, what the supremacy of Parliament debate is all about.
Martin Horwood: I would like to question the hon. Gentleman on one of these principles. He is presenting this as a competition between European and British law and between judges and Parliament, yet he himself has said that these debates are happening and this authority has been conferred on British courts because of the European Communities Act 1972, which, unless I am very much mistaken, was an Act of this British Parliament. That rather reinforces the principle of supremacy.
Mr Cash: If I may say so, that is not only true but precisely what I am seeking to deal with in new clause 1, which I tabled because the courts have been allowed this unwarranted intrusion the legislative process by judicial activism. Much of the European Communities Act 1972 invokes regulations, which come into effect in a different way from directives. In the new clause, the interpretation and the construction put on legislation by the judiciary should not under section 3 of that Act extend to the nature or legal effect of parliamentary sovereignty.What I am doing is exactly what the hon. Member for Cheltenham (Martin Horwood) highlighted – dealing with the mischief, as I see it, created for that ultimate source of authority, which lies in this House as a sovereign Parliament, to be able to make and unmake laws as it wishes.
That does not necessarily mean that we would automatically take extreme positions. Some academic lawyers – very distinguished they are, too – have gone to extraordinary extremes in trying to demonstrate, in print, the necessity for their case, and have not done themselves a service in so doing. It is at a much more mundane level that the people of this country are unreasonably affected by some of the legislation that needs to be dealt with in Parliament, and which can be dealt with only by the sovereignty of Parliament in its traditional sense.
The sovereignty of Parliament is not an arcane constitutional curiosity or a theology; it is an essentially practical question. We in the House of Commons are elected. I am elected. We are all, individually, elected in our constituencies. What does that mean? It means that we are voted for by people who go into polling booths and register their votes for us individually. It is exclusively on that basis that our authority to legislate is derived. It is the very root of British democracy, and itsMembers of Parliament have an absolute duty to protect it on behalf of their constituents. A threat to parliamentary sovereignty is a threat to democracy.
Removing sovereignty from Parliament would pass that sovereignty to some other body, whether it be the European Union, the Supreme Court or any other organisation. Sovereignty is about giving ultimate power to the people’s democratic representatives in Parliament, not to the courts and not to international bodies such as the European Union. It is that democracy which gives voters freedom to choose who governs them and how, and for which people have fought and died.
Martin Horwood: The hon. Gentleman is being extremely generous with his time. According to a report from his own European Scrutiny Committee,
“the term ‘Parliamentary sovereignty’ bears a number of meanings which can get confused.”
Does not the risk posed by his amendment lie in the fact that it is so simple that it allows for wide and different interpretations that might be exploited by the very courts about which he seems to be so worried?
Mr Cash: I should be more than happy to show the hon. Gentleman a book that is entirely devoted to the issue of the sovereignty of Parliament. The point is that there is no need to define parliamentary sovereignty. The Constitutional Reform Act 2005, which gave greater independence to the judiciary and the whole of which ultimately turns on the rule of law, does not contain any definition of the rule of law. Certain fundamental principles, and methods whereby we are governed, do not require definition for that purpose. They are applied, in the case of both sovereignty and the rule of law. There is a natural constructive tension between the two, but it is our job to protect the element that involves the sovereignty of Parliament.
Mr MacShane: I do not disagree with what the hon. Gentleman has been saying, but the fundamental rule of international law in regard to treaties is “pacta sunt servanda”. Those who sign a treaty must abide by it. If Parliament does not like a treaty, it has a sovereign right to withdraw from it. We can withdraw from the European convention on human rights, which is concerned with deporting people and so forth, and we can do the same in regard to the European Union. That is not a nuclear option; it is a perfectly fair choice that this Parliament could take. I rather wonder whether that is the speech that the hon. Gentleman should be making.
Mr Cash: I shall deal with that point shortly, but – with respect to the right hon. Gentleman – he will have to be a little patient. As Members will have noticed, I have sought only to strengthen clause 18, which, as it stands, merely refers to the “Status of EU law”. We were promised a sovereignty clause, and my amendment would achieve that. The clause as it stands would be subject to statutory interpretation, and it would be strange, uncertain and hazardous not to insert this provision in the framework of the European Communities Act 1972 itself. Clause 18 is a stand-alone clause. It refers to the “Status of EU law” and to section 2 of the European Communities Act, but it does not amend the Act. I am talking here about section 2 through section 3, when the judges apply themselves to any law. The clause is only six lines long, but it incorporates and absorbs within it every single piece of European legislation, so it applies to everything. However, although we know that law from the European Union emanates through from the 1972 Act, this measure does not amend the Act when incorporating the status of EU law. I am extremely concerned about that and find it very strange. In fact I will go further and say that I think the measure is deliberately contrived to make sure it is not an amendment to the 1972 Act.
Mr John Redwood (Wokingham) (Con): I am grateful to my hon. Friend for drawing the House’s attention to this crucial matter. As I understand it, he, like many of us, rightly wants to reassert the sovereignty of Parliament and make it clear that Parliament remains sovereign in all circumstances, and as I understand it, those on the Treasury Bench have the same aim. Given that his proposal seems to be stronger in this regard, can he think of any good reason why they should refuse it?
Mr Cash: No, I cannot. I am a bit puzzled by that, but as I develop my speech I hope to be able to explain where I think the origin of the problem lies.
The Government and the Prime Minister fail either to explain why the 1972 Act was not amended in the way I have just suggested or to follow the route I have provided in my sovereignty Bills, and which has also been provided by the Bills that have followed from colleagues over the past few years. I have to say, however, that my sovereignty proposals of 2006 in relation to the Legislative and Regulatory Reform Bill were accepted by the current Prime Minister when he was Leader of the Opposition and by the party Whips. Indeed, I might add that the Minister for Europe voted for those arrangements. I am glad that he smiles, because the smile is on the face of the tiger.
The fact is that we went through the Lobby then. The Whips came up to me in the middle of the afternoon and said, “Bill, will you please be good enough to allow us to adopt your amendments and put in Tellers?” I was extremely impressed, and slightly flattered. They decided to do that, and then, having accepted that and having faced down the then Government with such incredible force, they went off to the House of Lords and whipped it through the Lords six weeks later. A degree of conviction clearly lay behind that, and it matches up rather nicely with the manifesto promises about the sovereignty Bill and so forth.We were nearly getting there – we were on the brink, it might be said. The question is: where are we now?
As I have said, it is well-established that there is an historical and constitutional tension between the courts and Parliament because of the democratic basis of parliamentary sovereignty, not by virtue of a common law principle, and I have also proposed an amendment to prevent that principle from being subject to judicial application. It is also necessary to include the reaffirmation of Parliament so that the courts would not be able to ignore those words, which are lacking in clause 18 as it is currently drafted, and in order to address the problem relating to the 1972 Act.
In one of the Prime Minister’s letters to me – he has written two letters in the last few days – he claims:
“I can, of course, assure you not only that we have no intention to affect adversely the principle of Parliamentary sovereignty, but also that we do not believe that Part 3”
– that is a reference to clause 18 –
“runs this risk. As you would expect, we made sure we looked at this matter very thoroughly.”
My letter to the Prime Minister of 13 December, which I have sent to a number of colleagues to ensure fairness and transparency, indicated that I thought that in the light of his previous observations and assertions about a sovereignty Bill, not to mention the manifesto and so on, this principle of parliamentary sovereignty was a given and that the drafting of clause 18 – this is so in the light of the evidence given to the European Scrutiny Committee and our conclusions – had demonstrated that the Government’s intentions had merely produced unintended consequences. I went out of my way to say that I was sure that he did not intend this. However, our European Scrutiny Committee was doing what he has continuously said it should do: improve the scrutiny of European legislation. That is one of our fundamental principles; we are going to make sure that European legislation is looked at properly. That is what we have done, and we have reported. We revealed, after four weeks of taking evidence and engaging in crossexamination, that, unbeknown to others, this clause will have unintended consequences.
So our Committee came up with its conclusions, as a result of having followed the Prime Minister’s advice to scrutinise as well as we have done, and he then turns around and says, through his Ministers and in letters to me, that
“we looked at this matter very thoroughly”
and that,
“We do not believe that part 3 runs the risk that you are identifying.”
Basically, he said that we were wrong. It is a serious matter for a Prime Minister to say that to a Select Committee, which is one of the reasons why I am taking these steps. I hope that I am doing so with a good sense of timing and humour, because it is very important that we do not turn this into something more difficult.
However, I have to say that his reply of 10 January shows that the Government stand by the wording, having made sure that they examined the matter “very thoroughly”. I must say, on behalf of myself and others, that I am afraid that the consequences remain damaging for parliamentary sovereignty, for all the reasons that I have been setting out. He goes on to say that
“the words you have suggested would create uncertainty, because the term ‘Parliamentary sovereignty’ is not defined. There are no precedents for…referring to Parliamentary sovereignty in Acts of Parliament.”
He also says that attempts to define it will be “difficult and complex”.
With respect, that does not take us anywhere, because the expression “sovereignty of Parliament”, which is the one I have used, does not require definition in statute, as any examination of constitutional authorities makes abundantly clear. Some of those authorities prefer to use the expression “legislative supremacy of Parliament”, by which is meant that there are no legal limitations on the power of Parliament to legislate. I return to the words of the late Lord Bingham:
“The bedrock of the British constitution is…the supremacy of the Crown in Parliament”.
In the words of one of our greatest constitutional authorities – according to Dicey – under our constitution, Parliament has the right to make or unmake any law whatever and, furthermore, no person or body has the right to override or set aside the legislation of Parliament. There is no definition of “the primacy of European law”, nor, as I have just said, is there any definition in the Constitutional Reform Act 2005 of “the rule of law”. The fact is that certain expressions do not require that degree of definition, so I do not agree with the Prime Minister or with the Ministers on that point.
One of our witnesses, whose evidence the Committee did not accept, argued that Dicey’s exposition of sovereignty has been based on assumptions about representative democracy that, in his view, were flawed even in 1885 and could not be made today. That witness happens to be proponent of and is in agreement with the views of other witnesses who promote the common law principle, such as Professor Trevor Allan.We rejected that view, distinguished as those people are, as we rejected the common law principle as set out by the Government in their explanatory notes – but merely removing them from the notes will not influence this kind of thinking in the Supreme Court or in influential academic circles. One has only to see the amount of time and effort that has been expended on this in learned journals to realise that they are not going to be pushed out of thinking the way they do merely because we correct them in the explanatory notes.
The same could be said of Lord Justice Laws’ views on constitutional statutes, which do not have special status in the traditional sense against any other statute. All are subject to repeal where Parliament so decides in the national interest. That is an advantage of our organic, unwritten constitution, so that we can, in a Burkean sense, adapt as and when necessary on firm and principled foundations. As Bradley and Ewing indicate by contrast to written constitutions such as that of the United States, the legislative supremacy of Parliament amounts to a fundamental rule of constitutional law and this supremacy includes the power to legislate on constitutional matters.
Under the short clause 18, which applies to all European laws, the vast array and impact of which are set out chapter by chapter throughout the Lisbon treaty, there is endless scope for the judiciary to apply principles that are alien to the traditional doctrine of parliamentary sovereignty where, as is the case with clause 18, there is a failure to incorporate the clause into the European Communities Act 1972 and a failure to reaffirm explicitly the sovereignty of Parliament and to eradicate by express words from judicial judgments the common-law principle. There is more to this than is apparent in clause 18 as it stands, and the Foreign and Commonwealth Office lawyers know that very well. I was persuaded that Ministers and the Prime Minister did not appreciate that, but I am now deeply concerned by the manner in which they have fallen for these new fancy notions with hazardous and dangerous consequences for parliamentary sovereignty and I urge hon. Members to take note.
It is important to make the statement that the sovereignty of Parliament is reaffirmed. It is at last necessary to stem the tide to which Lord Denning referred in his famous judgment in McCarthy’s v. Smith, and that is what my amendment would do. This was omitted from the original explanatory notes and is now included in the Government’s reply to the Committee, which is surprising. For too long, we have witnessed further seamless and ceaseless integration and it is time we took a stand, removing ambiguity, uncertainty and the gradual absorption of the EU into our own constitutional DNA – that is the point. This is about not just the European Court but our constitutional law, of which Parliament is an integral part.
On compliance with international obligations being obligatory if we were expressly to legislate inconsistently with the 1972 Act or with legislation made under it, the Minister for Europe has stated on several occasions that he does not regard it as a matter of policy. I must emphatically refute that assertion as being entirely inconsistent with the legislative supremacy of Parliament and its sovereignty. That was clearly stated in Mortensen v. Peters in which it was held that the courts may not hold an Act void on the ground that it contravenes general principles of international law. Let me mention the right hon. Member for Rotherham (Mr MacShane) at this stage as he raised this question. Furthermore, the courts may not hold an Act invalid because it conflicts with a treaty to which the United Kingdom is a party. Statute is superior to prerogative in law and any treaties or legislation flowing from those treaties, even within legislation passed under the 1972 Act, is subject to parliamentary sovereignty and to repeal.
Suppose that we decided to disapply a provision on matters close to the Prime Minister, such as social and employment legislation, as he promised in 2005, or declined to bail out Portugal or Spain as part of the unlawful financial stability mechanism, or insisted on legislating within the United Kingdom for the City of London or decided to disapply investigative orders? On that and a vast range of other matters, if we thought it was in our national interests to do so, we could and should disapply EU law and require the judiciary to give effect to that law provided that it was clearly and expressly stated, whether or not it came from an international treaty or a European law. That includes repatriation, which has been specifically rejected by the Deputy Prime Minister. Furthermore, if we were to do that, we could not allow the judiciary flagrantly to contradict Acts of Parliament. That has never been accepted in our constitutional law, and the vagueness of clause 18 is, in the words of one of the distinguished witnesses, “an invitation to litigate”. The uncertainty and ambiguity that would arise as a result of the need for interpretation would invite that part of the judiciary that does not accept the traditional view of parliamentary sovereignty to prevail. That is why I am being so specific in the wording that I have used: it is a marker of the same kind as the Bill of Rights, and it says, “You do not touch the sovereignty of the United Kingdom Parliament.”
SirMalcolmRifkind: Is my hon. Friend not in danger of being so learned as to confuse himself about his own amendment? The sovereignty of Parliament was not created by an Act of Parliament, and it has never depended on an Act of Parliament. How can its restatement in an Act of Parliament given any real added value to its legitimacy?
Mr Cash: Precisely because the courts have moved further and further down that route, as I explained when quoting Lord Hope’s speech. The Supreme Court has been given independence under the Constitutional Reform Act 2005. I see a slight smile appearing on my right hon. and learned Friend’s face.
Sir Malcolm Rifkind: Not for that reason.
Mr Cash: Ah. He knows that he may have to answer that question during the debate. Judicial trends have recently moved along that route, and that movement is firmly entrenched, so it is time to call a halt to them, and that is what the amendments would achieve.
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Mr Cash: That would be the case if it were accepted by the judges in the Supreme Court. It is precisely because we know that they are not inclined to take that view that the amendments are necessary. We are extremely grateful for the evidence that we have received from distinguished witnesses, but the problem is not what they have said, because they aided us in arriving at conclusions in the light of our need to defend parliamentary sovereignty. The problem does not lie in Parliament or with the witnesses; it lies in the assertions of a circle of certain judges and lawyers.
Mr Jenkin: I am intrigued by the intervention of my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who appears to be suggesting that Parliament can simply assert its authority over the judges by some means other than statute. I would like to know by what means it can do so. In the 17th century, it was violence, and I would prefer that Parliament should not have to resort to violence. I think that we should resort to statute, which would govern the judiciary, and we can direct them to behave according to statute.
Mr Cash: I am grateful to my hon. Friend, because as I mentioned earlier, under the Constitutional Reform Act, there is no displacement of the doctrine and, indeed, the constitutional principle that judges may be removed by an address of both Houses of Parliament. Furthermore, as my hon. Friend has mentioned the 17th century, the 1610 case of Dr Bonham continues to apply, up to and including the 2005 Act. Lord Chief Justice Coke asserted that the common law could usurp Acts of Parliament – I am paraphrasing, but he was specific – but he was dismissed by Parliament for making such assertions. My hon. Friend’s point is therefore well made, and was part of the constitutional settlement in the Act of Settlement 1701 and is still part of that settlement by virtue of the Constitutional Reform Act 2005.
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Mr Cash: What is simple is that the concept of parliamentary sovereignty requires some explanation, and Jeffrey Goldsworthy does that. The question is not merely about parliamentary sovereignty; it is also about the manner in which the courts apply themselves to that doctrine. That is where the mischief lies and that is what my amendments would deal with.
I should like to respond to the Government’s reply, published only yesterday, to the European Scrutiny Committee. The Government say that they have never claimed that parliamentary sovereignty is under threat from EU law, but a problem remains for them. The evidence to the Committee was that that could well change in future, given current judicial trends; that is exactly what we were told.
The Government claim that disapplying EU law, an issue that has just been raised, would have unacceptable consequences – with infraction proceedings, and so on. But I make the point clearly that according to the evidence that we received, not only are several countries already in breach of EU law – France’s deportation of Roma immigrants, for example; no action was taken – but there is non-compliance on a massive scale. We know all about that, with the stability and growth pact.
There has also been the more recent failure to comply even with EU law itself in respect of the financial stability mechanism. Anybody with two brains to rub together would know that article 122 could not possibly justify – [Interruption.] Well, “Two Brains” could. No one could justify the use of article 122 for the purposes of that mechanism. If in the national interest, Parliament decides to do so, that is that.We obey EU law only in so far as it is a matter of statute and continues to be regarded as a matter of national interest.
As to the background of all this, my right hon. Friend the Prime Minister made several speeches before the general election that clearly demonstrated that we would no longer allow Britain’s laws to
“be decided by unaccountable judges.”
He said that their role was to interpret not to make law and that the sovereignty of Parliament needed to be safeguarded not only from the EU but from current trends in judicial thinking. We were promised last year:
“you can be assured that you have a Conservative prime minister who will act in the national interest. And putting your country first is about the most important Conservative value there is.”
The Prime Minister also said:
“The Conservative Party has always been a party that puts the national interest first.”
I absolutely and entirely agree. By the way, it was Disraeli who said that the Conservative party was a national party or it was nothing; I agree with that, too.
The tragedy is that the coalition and the Liberal Democrat influence in the formulation – and subsequent discussions, I suspect – of clause 18 and the Bill as a whole have gone a long way towards undermining the commitment to putting the national interest first. I fear that, far from working together in the national interest – and it is not just on this one clause – we are now witnessing policies that in relation to matters as important as the sovereignty of Parliament are actually working against the national interest.
That could be remedied very simply by dealing with the omissions, dangers, ambiguities and hazards that the clause throws up and by accepting my simple and modest amendments. My challenge is this: will hon. Members vote down an amendment that says:
“The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed”?
We all know that it is not possible to constrain the judiciary in relation to EU law except by using clear words. Those are lacking in clause 18, and I have substituted words that have the appropriate effect.
Mr Peter Bone (Wellingborough) (Con): On my hon. Friend’s point, is he saying that if we had a Conservative Government, we would have a totally different Bill?
Mr Cash: I congratulate my hon. Friend on that extremely perceptive remark. I entirely agree with him. If that were the case, we would not be where we are now. That is part of the lesson. [Interruption.] That might be true too, but who knows.
My new clauses and amendments to clause 18 would put the matter beyond doubt and I cannot for the life of me see why they cannot be accepted in the national interest. I believe firmly that they would have been accepted under a Conservative Government and we know that in 2006 we were almost there. The very fact that the Government might obtain a majority for the legislation should be of no comfort or satisfaction to anyone in the country, inside or outside Parliament.
In that past, those of us who have been criticised or perhaps underestimated for our predictions on Europe need only to look at the record to see how often some of us have been proved right in the national interest.Winning a vote does not always come into that category. I can only hope that failure to accept the clarification that my amendments would give will not, in a few years’ time, have seemed in retrospect a price worth paying, rather than seeking to uphold on every score a coalition of parties that on matters relating to judicial supremacy, the European Union, a written constitution and the national interest are often fundamentally poles apart. “The fault, dear Brutus, lies not in our stars, But in ourselves, that we are underlings.”
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I am very glad to see that the Prime Minister is in his place for these final moments. He and I have had some interesting correspondence. I thank all the hon. Members who have participated in this debate, which included some brilliant speeches from my hon. Friends the Members for Harwich and North Essex (Mr Jenkin), for Hertsmere (Mr Clappison), for Aldridge- Brownhills (Mr Shepherd) and others.
In the brief time that I have left, I confirm that I will press amendment 41 and I would be astonished if anybody voted against it. However, I am certain that they will. The difficulty that they will then be in is that, although I will not move the other amendments because of a lack of time and because the issues have been encapsulated in the debate, I have demolished the argument put up against the amendment that the status clause should not be by virtue of a common-law principle, both in respect of the academic arguments and of those that have been put forward by the Foreign Office in the explanatory notes. I have, I believe, demolished the argument relating to the question of parliamentary sovereignty, and I refer the Minister to the State Immunity Act 1978, which clearly deals with the question of the sovereign or other head of state in his public capacity. It is already in an Act of Parliament and, by the way, it is not defined, any more than “the rule of law” is defined in the Constitutional Reform Act 2005. It does not need definition: the statement and the principle stand.
The sovereignty of Parliament is inviolate, but requires to be reaffirmed, as the Prime Minister has repeatedly told us in the past, but unfortunately will not do through this Bill. With respect to the question about section 3, it eliminates the impact of the courts seeking to use the European Communities Act 1972 to achieve their objectives in relation to parliamentary sovereignty. The other provision in new clause 4 reaffirms the existing constitutional law on the sovereignty of the United Kingdom Parliament in relation to EU law, and I am glad that the Minister has said that he agrees with the sentiments, which I believe are justified.
Having said all that, I believe that we have had thoroughly good debate, and that, above all else, we have proved our point.We know that we are not going to win the vote. The Labour party has completely reneged on its principles, as expressed by the leader of the party when he said that their rubbish amendment was a matter of principle in defending parliamentary sovereignty. He must be joking! The fact is that clause 18 does not defend parliamentary sovereignty either.
Debate interrupted (Programme Order, 7 December ).
The Chair put forthwith the Question already proposed from the Chair (Standing Order No. 83D), That the amendment be made.
The Committee divided: Ayes 39, Noes 314.
