Parliamentary Standards Bill

I am grateful to the noble Lord because I was not aware of that. That would be extremely helpful, but I think my noble friend Lord Higgins asked that the Attorney-General say to what extent there remain general constitutional problems in this Bill or whether they have been dealt with. I come back to the question whether Amendment 1 refers to the United Kingdom courts. We welcomed that amendment—I think the Government’s decision to accept it was applauded in all parts of the House—but it does not cover protection against proceedings in the European Court of Justice and the European Court of Human Rights. I emphasise that this is not an anti-EU point. Noble Lords who were in the House of Commons at the time may remember my noble and learned friend Lord Howe of Aberavon taking the European Communities Bill through the House in 1972. I was Financial Secretary and in charge of the money resolution, on which we had a full day, and it is interesting to look back at that in the light of history. I have never adopted an anti-EU stance. The proposed new clauses aim to extend the protection against judicial attack on the free speech of Members of Parliament in proceedings in Parliament not only in the UK courts but in the European Court of Justice and the European Court of Human Rights. Noble Lords who were there may well remember that last Tuesday I postulated in a debate on another amendment that a disgruntled person, perhaps even a Member of Parliament, may not be satisfied that an investigation had been carried out properly because an otherwise incriminating or vindicating speech by the accused in Parliament was privileged and therefore not available to the commissioner or the police as evidence. The noble Lord, Lord Lester of Herne Hill, then drew our attention to the Hamilton case. Such a disgruntled person, unable of course to raise the matter in the courts here, could then turn to the European Court of Justice or the human rights courts and pursue his case there. I should turn to the European Union treaties to explain how that might be done and what the impact would be. Article 234 of the present version of the treaties provides that: ""The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty"." Once the treaty includes the fundamental charter of human rights, which includes the Article 11 provision for free speech, there seems to be no doubt—perhaps I should put this in the interrogative and ask: is there any doubt that this could include a power to construe matters that are currently protected by Article IX of the Bill of Rights? Moreover, while Amendment 1 would prevent a domestic court from construing Article IX, such a court or tribunal would be obliged to refer the matter to the European Court of Justice if an application were made for it to do so. That is the impact of Article 234, which includes the provision: ""Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is a judicial remedy under national law, that court tribunal shall"—" I emphasise "shall"— ""bring the matter before the Court of Justice"." In fact, this provision places an obligation on any such tribunal to refer the matter to the European Court of Justice, if that court asks for it. This would include IPSA, the commissioner and even the Committee on Standards and Privileges in another place. I think that this is the effect of the treaties, but I should be grateful if the Government could confirm whether that is right. I have had a careful look at the treaties and taken advice, and I think that that is what they provide for. I want to refer in passing to the opinion of the noble and learned Baroness the Attorney-General given to the right honourable Harriet Harman, Leader of the House of Commons, on 3 April in the wake of the affair involving my honourable friend Damian Green. Her letter and the report were circulated also to, among others, my right honourable friend Sir George Young, the chairman of the Committee on Standards and Privileges. They were placed in the Library of the House of Commons, but I am not sure whether they were placed in the Library of this House. Under the heading "Admissibility of evidence and Parliamentary privilege", the noble and learned Baroness said, at paragraph 3: ""It is clear that the determination of whether material is inadmissible as evidence in a criminal trial by virtue of Article IX ""is a matter for the court. Article IX is statute law and its interpretation, as with any other statute, is a matter for the courts. It is a question of law both whether particular material constitutes ‘proceedings in Parliament’ and whether the use that the material is being put to amounts to the impeaching or questioning of such proceedings"." That is an admirably clear statement of the law. The noble and learned Baroness, who is an extremely able lawyer, got that absolutely right. However, it is incomplete. Perfectly reasonably, the noble and learned Baroness was not addressing the issue of European law—I do not think for a moment that anyone suggested that my honourable friend Damian Green was to be referred to the European Court. That statement simply did not refer to it. However, the passage that I quoted from Article 234 of the treaties makes it abundantly clear that the article gives jurisdiction to the European Court of Justice. Moreover, if there is an application to the domestic court in this country, that court must refer such a question to the European Court of Justice. That is what seems to be the position, but I ask the question: am I right in saying that that is the result of the law? Am I also right—as I suspect I am—that Amendment 1, which we passed on Tuesday, does not prevent that? It does not appear to stop it. That amendment referred only to the domestic courts. As I see it, there is nothing in that amendment that would stop the Strasbourg court deciding that Article IX—I just give this as an example—should be set aside in the interests of what that court might see as its wider duty to ensure due process. Therefore, if the Bill is to be protected from the courts by virtue of Article IX, which I believe was the intention of this House when we and the Government accepted Amendment 1, it needs to be supplemented by the two new clauses that I have tabled in Amendments 78 and 79. In my view, both new clauses are essential if this is going to work—indeed they work in harness. Amendment 78 exercises Parliament’s sovereign right to limit the application of the European Communities Act and the European Court of Human Rights. It may be argued that this is theoretically capable of being struck down by either court. Therefore, the new declaration in clause in Amendment 79 is essential to make clear that Parliament is legislating Amendment 78 in its capacity as a sovereign body. It has been part of my understanding of our constitutional position that the UK Parliament is sovereign. As Lord Justice Cooke said 500 years ago or whenever, it can do anything it likes, except turn a man into a woman. It has repeatedly been said in the courts—noble Lords may well remember the recent case of the "metric martyrs", heard by Lord Justice Laws—that the supremacy of EU law applies only through the European Communities Act 1972, which is available to this Parliament to repeal or amend. I am not suggesting for one moment that either should happen. What I am suggesting is that there are essential issues which need to be protected, and I shall quote in a moment from the government White Paper. The only reason one might argue that we should not do that is if one believes that parliamentary sovereignty is a dead duck. I most emphatically do not believe that. When we joined the Community in 1973—I took the money resolution through another place at that time—the then Government’s White Paper of 1971, for which my noble and learned friend Lord Howe had a major responsibility, made it abundantly clear that the treaties established a community of great nations, ""each with its own personality and traditions"." It continued: ""Like any other treaty, the Treaty of Rome commits its signatories to support agreed aims"." Furthermore, the White Paper stated: ""There is no question of any erosion of essential national sovereignty"." An earlier sentence states: ""On a question where a Government considers that vital national interests"—" I stress those words— ""are involved, it is established that the decision should be unanimous"." There is no reference at that stage to the European Court of Justice. However, Article IX of the Bill of Rights would be regarded as a vital national interest. I will make one last point. Neither of these new clauses would put this country in conflict with EC law, or with the ECHR. That would occur only if there were to be a judgment that sought to set aside the two new provisions passed into law by this Parliament. One must ask: would the European Court of Justice or the ECHR ever do that in relation to Article IX? I do not believe that there is the remotest possibility of that happening, because it would call into question the whole relationship between those courts and the member countries. It behoves this Parliament now to make the position abundantly clear. If we fail to make it explicit in the Bill, in respect of which matters of privilege have been questioned and widely debated, it would surely invite doubt that Parliament intends to defend this principle. When we added Amendment 1 to the Bill—it will become Clause 1 of the Bill when it is reprinted—the intention was to preserve the rights of Parliament established under Article IX of the Bill of Rights from interference by the courts. If that is right, we must now make sure that those rights will not be overridden by the European Court of Justice or the European Court of Human Rights simply because we have omitted any reference to them in the Bill. The proposed new clauses are essential if the main purpose of Amendment 1 is to be achieved. I beg to move.