There is a confusion in this country that comes up quite frequently. We like to think—we are brought up to think it—that we do not have a written constitution in this country and we do not have constitutional laws. That is totally untrue: the Bill of Rights is a constitutional law; in my view the Bill that we are now trying to repeal, the European Communities Act, is a constitutional law; and the Human Rights Act is certainly a constitutional law. By “a constitutional law”, I mean a law that is generally regarded as foundational and is prayed in aid before the courts and referred to in court judgments across a whole range of subjects. Because of that contradiction, we do not really recognise what is going on and we get ourselves into a frightful confusion.
Unlike the noble Baroness, Lady Deech, I am not shocked and offended by the idea that a court could put aside a Bill that was contrary to existing law. The remedy, of course, is quite simple: Parliament can change either the existing law or the previous one. The noble Viscount, Lord Hailsham, my Lincolnshire neighbour, came out with the right solution when he said that the check and the important constitutional protection against a Government with a parliamentary majority acting entirely irresponsibly or even tyrannically is that any Bills they put forward would have to go through both Houses. In that context, one hopes that the House of Lords would act as a guardian of the constitution and be prepared to stand up to the Government and wait for them, if necessary, to bring in the Parliament Act to override it. That would be a considerable check and balance, and it is a very important role of this House that we are there as a long-stop in such circumstances. The noble Viscount, Lord Hailsham, came up with the right solution and I am sorry that I did not sign his amendment, but I certainly approve of it very much, and if he comes forward with something like it at Report, I shall be happy to support it.
11.30 pm