European Union Bill

I am sorry that the Minister deemed it unnecessary, or undesirable, to accept my intervention, but that does not prevent me from making my point. As the Minister will recall, it was the clear view of the European Scrutiny Committee that clause 18 was unnecessary. I am glad to say that a conversation in which I engaged today with one of my—let us call him—long-standing contestants in matters European, Lord Howe of Aberavon, confirmed that he shared our view. I have great respect for his legal knowledge, and I am delighted that we have achieved such a degree of understanding. The Government are embarking on what is, in matters constitutional, an extremely dangerous path to tread: a primrose path that could lead to disaster. I know that there was a great deal of detailed discussion—I hear of these things—with Lord MacKay of Clashfern, who, after all, used to be Lord Chancellor, and indeed was Lord Chancellor at the time of the Maastricht treaty. I remember well, as I am sure he does, that the whole business of European government was conceded, to our deep regret; hence the rebellion which I had the pleasure to lead. The Government appear to have been caught on the horns of a dilemma, and I think that they should have dealt with that in a different way. On one hand they are confronted with the European Scrutiny Committee, the expert legal advice that it has received, the further consideration that it has given to these questions throughout the intervening period, and its conclusion that clause 18 is unnecessary and undesirable. On the other hand—the other horn of the dilemma—is the view of Lord MacKay of Clashfern that the amendment is merely declaratory. Unfortunately, in taking the line of least resistance—which, I am afraid, is their hallmark in matters European—the Government have fallen between two stools, and impaled themselves on the horns of the dilemma. I think that Members should feel impelled, as I do—for very sound reasons, which I shall now explain—to vote against the Government's amendments and echo the concern expressed by the European Scrutiny Committee, which was supported by powerful advice. As I have said, our Committee took a great deal of evidence from some very distinguished constitutional and legal experts. It is all on the record, and we need not go into the detail—what we need to discuss is what has happened since then—but I will say that, as Chairman of the Committee, I ensured that the evidence was evenly balanced. We weighed up all the evidence from the greatest experts who could possibly express a view on the subject, and reached conclusions that were supported by the majority of that evidence. The Committee took the view that the principle of parliamentary supremacy should not be declared in statute, and that using the words"““It is only by virtue of an Act of Parliament that””" in a statutory provision such as clause 18 is tantamount to stating that there shall be parliamentary supremacy. However, the very stating of that undermines the central premise, which is that it does not need to be stated, and the danger of stating it is that, ultimately, the Supreme Court will be allowed into this sacrosanct arena. We are not talking about some technicality; we are talking about the very reasons for the existence of this House of Commons. Law is passed on the basis of views that are taken in a freely elected democratic assembly, which themselves refer to the decisions made by the electors in a general election. The issue of parliamentary sovereignty in the context of the European Union is that ever since Maastricht, and to some extent before it, decisions made, for example, by majority vote have often proved inimical to policies espoused by elements of the Conservative party, and indeed by our manifesto. One simple example is the repatriation of powers. The Government are faced with a conflict. In December 2005, when the Conservatives were in opposition, the present Prime Minister said that there should be a repatriation of social and employment legislation. Both Back Benchers and those now in the Government—including the Minister for Europe—opposed the Lisbon treaty in every respect. For the first time since 1972, the party was totally united. Now we find ourselves in the difficult position of being confronted with amendments that would allow an infringement of sovereignty, subject to final interpretation by the courts. The reversal of the hierarchy of norms that parliamentary supremacy implies is itself put at risk by the wording that the Government have chosen in their attempt to balance the views of Lord Mackay of Clashfern and the European Scrutiny Committee. The Government have chosen the easy way out, but it is not going to be easy—or, indeed, of any value whatever. It is extremely damaging to the national interest and the constitutional status of this House of Parliament. It may seem to be a few words, but unfortunately this issue has profound consequences. The debate in the House of Lords could be said to have shown that a legitimate confusion can arise from enshrining in statute an unnecessary declaratory statement. To quote a former first parliamentary counsel's comment: ““unnecessary words turn septic.”” Unnecessary words do not turn Eurosceptic; rather, they turn septic. That is what first parliamentary counsel said and, unfortunately, that is what both the Government's amendment to the amendment of Lord Mackay of Clashfern and his amendment itself achieve. They create a kind of septicaemia in the adjudication of matters of sovereignty, and will give the courts the purchase that was originally implied in the explanatory notes, which referred to the common law principle. We went into this matter both earlier in the debate and in our report. When the Bill went to the House of Lords, the Government took the infamous reference to the ““common principle”” out of their explanatory notes—I give them credit for having listened to us on that. They did so because they knew of the dangers inherent in respect of the courts, and certain members of the Supreme Court who have an increasing tendency to make certain comments, as expressed in the Jackson case and Lord Bingham's criticism, by name, of the judges involved. He was extremely upset and concerned, and for very good reasons. Two additional problems arise from the fact that Lord Mackay's amendment refers to the European Communities Act 1972. First, let me stress that my comments here should not be taken to prejudice the remarks I have already made that it is not about the 1972 Act exceptionally, but rather that Parliament has voluntarily agreed, as Lord Bridge said in the Factortame case, to incorporate that Act and therefore to allow all the consequences that flow from it, which are accumulating and, in my view, are extremely damaging to the United Kingdom and the people of this country in their daily lives. If we specify ““European Communities Act 1972”” rather than ““an Act of Parliament””, an argument can properly be made that we are, effectively, disabling Parliament from giving effect to European law in future by means other than the European Communities Act—or, in other words, by a new Act. This is the law of unintended consequences, but made much more serious given the context of parliamentary supremacy. The other problem is a technical question about an important issue relating to statutory interpretation. However much we in this House may wish to regard this matter as just a matter of debate, unfortunately when it gets into the clutches of the courts and certain elements in the Supreme Court who have a tendency to want to push the envelope on these issues, the reality is that it ceases to be a technical question, and becomes a very important constitutional question. I state unequivocally that that has led me to the view that I have to resist the Government's amendment, and I urge other Members to do the same. If we specify ““European Communities Act 1972””, a question arises as to whether that reference would cover future amendments to that Act after this Bill is enacted. I am going into the details of all this because I want them to be on the record; the devil is in the detail. The Interpretation Act 1978 is the basis on which I believe the provision under discussion will be interpreted by the courts. Once it has left this House with these offensive words in it, as prescribed by Lord Mackay of Clashfern and the advice he has given to the House of Lords, it will become the law of the land and will then ultimately end up in the Supreme Court, with extremely unpredictable unintended consequences. There will then be a very dangerous situation. That is why I am taking the trouble to set all this out. The Supreme Court also has an obligation to consider what has been said in Parliament. Turning to the point about statutory interpretation, as I have said the question arises as to whether the reference to the European Communities Act 1972 would cover future amendments to it after this Bill has been enacted. Section 20(2) of the Interpretation Act is ambiguous on this very difficult point, as is said in Francis Bennion's superb volume on statutory interpretation. Section 20 provides:"““Where an Act refers to an enactment, the reference, unless the contrary intention appears, is a reference to that enactment as amended, and includes a reference thereto as extended or applied, by or under any other enactment, including any other provision of that Act.””" In a case on an analogous provision in a tax statute, the court in question held that applying it to future amendments was to give it"““a width of application which the wording, at best equivocal, could not bear, especially in a taxing statute.””" The Lords amendment therefore raises a doubt about whether clause 18 will apply to future amendments of the European Communities Act 1972 and consequently raises an unnecessary doubt about the application of the principle of dualism to such future amendments—in other words, opening the door to interpretation by the courts on this fundamental question.