European Union Bill

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 cross-examination, 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.””