United Kingdom Parliamentary Sovereignty Bill
(13 years, 8 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Mr Christopher Chope (Christchurch) (Con)
I beg to move, That the Bill be now read a Second time.
I am delighted to see in the Chamber distinguished colleagues who are members of the European Scrutiny Committee and others who have kindly agreed to support the Bill. My hon. Friends the Members for North East Somerset (Jacob Rees-Mogg) and for Bury North (Mr Nuttall) are two such Members.
I am delighted that, pursuant to the principle of parliamentary sovereignty, at 11 o’clock the Prime Minister is going to come along and tell Parliament about the implications of the European Security Council resolution last night.
Mr Chope
That just shows how they’ve got at me, doesn’t it? I am going to tell the House later about some of my discussions earlier in the week in, dare one say it, Brussels.
The principle of parliamentary sovereignty means that the UK Parliament can enact any law whatsoever on any subject whatsoever, and can do so by ordinary legislation. That means that if the people want to change the law, their representatives elected to Parliament can do so. Likewise, if the people do not want the law to be changed, their parliamentary representatives can ensure that it is not. If the courts interpret laws that we have passed in a way that Parliament does not wish, it can change those laws.
This is still a hot topic, despite the lengthy discussions about it in this place when we debated the European Union Bill. To give a flavour of it, I shall give examples of the regular correspondence that I get from constituents on it. I have a letter dated 10 March, an old-fashioned holograph from a lady from Christchurch. She says that she is fed up with the way in which the British people are being overridden by the EU and disappointed by what the Prime Minister said in response to my hon. Friend the Member for Wellingborough (Mr Bone) about a referendum. She thinks that the sooner we get the British people a say in the issue, the better.
I have another letter, which came this Monday, which talks about the people’s pledge and the desire for the voters of the UK to decide once and for all whether we should remain in the EU or leave it. In a sense, the purpose of the Bill is to ensure that we do not have to go through that process, because we in this elected House would be able to decide what we wanted and what we did not want in relation to EU legislation.
Mr William Cash (Stone) (Con)
Under my hon. Friend’s splendid Bill, would we also be able to overturn the vote against reaffirming the sovereignty of the UK that the House took during the debates on the European Union Bill? Would it effectively put us back where we really belong?
Mr Chope
I am grateful to my hon. Friend and indebted to him for the work that he has done on this subject. This is but the latest in a series of Bills, many of which he has drafted. Of course, he knows the answer to his question, which is that if the Bill were passed, it would have the effect that he has described. I think the House and the country would be a better place as a result.
Sir Peter Bottomley
I may be anticipating a point that my hon. Friend will make later—he may just be clearing his throat and will turn to the contents of the Bill in a moment. May I take him to the last word of clause 1, which is “reaffirmed”? If the Bill is enacted with the words:
“The sovereignty of the United Kingdom Parliament is hereby reaffirmed”,
will that change the current situation or leave it as it is?
Mr Chope
Arguably, it would leave it as it is. There was a debate on the European Union Bill about whether we needed to reaffirm our sovereignty. My concern, which I think was first expressed in the House by my right hon. Friend the Member for Wokingham (Mr Redwood), is: “If you don’t use it, you lose it.” The monarch—the Queen—is sovereign, but because she has not exercised her sovereignty for a period of time and is exercising it less and less, there comes a stage when people say, “You have given it up.”
The concern that I and a lot of other Members have is that if we do not keep reasserting our sovereignty, we might suddenly find that an external body or court interprets that as meaning that, by default, we have conceded that Parliament no longer has sovereignty in various aspects of our country’s affairs. That is why clause 1 is in the Bill. It may seem bizarre that we have to reassert that, but I believe that we need to do so because our Parliament is under continual assault from external organisations that are trying to interfere with our right to decide our own affairs.
Mr Cash
May I refer vicariously, through my hon. Friend, to the book written by Jeffrey Goldsworthy, which would give my hon. Friend the Member for Worthing West (Sir Peter Bottomley) an opportunity to catch up with the meaning that should be given to the words “parliamentary sovereignty”? It points out that the necessity to reaffirm that is becoming acute, for the reason that the European Scrutiny Committee’s report published the other day stated clearly. Certain judges in the Supreme Court are strongly suggesting that parliamentary sovereignty has been qualified, and that they hold ultimate authority. That is a recent and extremely dangerous move.
Sir Peter Bottomley
I do not want to detain my hon. Friend, but it was not the beginning of clause 1 that I was questioning; it was the word “reaffirmed”. I wonder whether the word “affirmed” or “exists” would have done.
In 1948, or sometime about then, when NATO was created, we agreed to give our sovereignty on starting a war to people who were then at Fontainebleau and later moved to Brussels. I do not mean that as an argument against my hon. Friend, and I am not opposing what he is trying to do, I am just trying to clear up what clause 1 actually means and why its last word matters.
Mr Chope
My hon. Friend asks why use the word “reaffirmed” rather than “exists”. I have chosen that particular word, but other words could be substituted for it. I am not saying that it is the only word that could be used in clause 1 to convey the meaning that I wish to get across. I think it is a good word, and unless and until somebody comes up with an amendment that they think is better, I would like to keep it in the Bill. If my hon. Friend would like to join me in considering the Bill in Committee in due course, I am sure he will have the chance to move amendments and speak to them to explain why he thinks his choice of words is better than the words in the Bill.
May I take the House back briefly to the “Invitation to Join the Government of Britain”, which was the title given to the Conservative party manifesto at the last general election? On page 114, under the subtitle “Promote our national interest—an open and democratic Europe”, it is stated:
“The steady and unaccountable intrusion of the European Union into almost every aspect of our lives has gone too far. A Conservative government will negotiate for three specific guarantees—on the Charter of Fundamental Rights, on criminal justice, and on social and employment legislation—with our European partners to return powers that we believe should reside with the UK, not the EU. We seek a mandate to negotiate the return of these powers from the EU to the UK.”
Mr Peter Bone (Wellingborough) (Con)
I understand that the Ministry of Defence has had to pulp several books because it does not like them. Is it correct that Conservative central office has tried to pulp all the previous manifestos?
Mr Chope
I do not know, but I think my hon. Friend is perhaps a bit harsh. I hope that all Conservatives in this Parliament, who were elected on that manifesto, are trying their hardest to ensure that its words are implemented. My hon. Friend is in the forefront of trying to achieve that objective.
We were also promised in an informal meeting of the Conservative parliamentary party that there were red lines around our policy on Europe in the coalition agreement. We therefore believed that the words that I have just read out would not only remain part of the Conservative party manifesto but be inherent in the coalition manifesto.
I do not want to go back over the European Union Bill because we had long discussions about it, but recent events have brought home to me the fact that the gradual erosion of our sovereignty remains a live issue. We had a debate on Wednesday evening, which is, in a sense, unfinished business, because the Division is deferred to next Wednesday, about the fact that the Government have decided to use section 6 of the European Union (Amendment) Act 2008 so that the Prime Minister can agree to amend article 136 of the treaty on the functioning of the European Union next weekend to establish a permanent stability mechanism for the euro.
The hon. Member for Luton North (Kelvin Hopkins) made one of the most interesting interventions in that short debate when he asked:
“Would it not be more appropriate for an intergovernmental agreement to be reached among the member states of the eurozone, rather than have some change to the treaty on the functioning of the European Union?”
My right hon. Friend the Minister for Europe replied:
“It would have been possible for the member states of the eurozone to have come to such an intergovernmental agreement, but they chose not to do so.”
Surely if member states want to set up intergovernmental arrangements centred around the euro and the eurozone, they should be allowed to do so. There is no reason for the Government, controlled by Parliament, to be dragged into that process. It then became apparent that Parliament was being asked to give the Government authority to negotiate away some of our powers because it was thought sensible for us to be party to an unnecessary treaty amendment. If it is not necessary, why are we doing it? How is that consistent with what was said in our manifesto?
Later in the debate, my right hon. Friend the Minister for Europe said:
“Should there be any suggestion of amending the draft decision at the European Council—there is no such suggestion from any quarter at present—”.—[Official Report, 16 March 2011; Vol. 525, c. 422-24.]
However, as I said, I was in Brussels for three days at the beginning of this week and I picked up a copy of European Voice, a newspaper that circulates there. An article on page seven, under the headline “MEPs confident of getting say on bail-out mechanism”, states:
“MEPs expressed optimism on…8 March that EU member states will accept their demands to link a permanent bail-out mechanism for the eurozone more closely to the EU institutions.”
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
I am curious about who publishes European Voice. Is it a paid periodical, something that the Commission publishes or something that circulates among MEPs?
Mr Chope
It may be all those—I do not know. However, I suspect that the people who ultimately pay for it are the hon. Gentleman and I through our taxes. Interestingly, on the same page, without comment or criticism, a paragraph states:
“MEPs vote to increase their own office allowances”
to €225 a year. Since that news item is included without any adverse comment, I suspect that the publication is associated with the European Parliament.
Mr David Nuttall (Bury North) (Con)
Is my hon. Friend completely accurate? Is it €225 a year or a second?
Mr Speaker
Order. May I just say that the hon. Gentleman has been entirely relevant so far? He has nothing to fear.
Mr Chope
Accolades from Mr Speaker are always welcome in my heart.
The article continues:
“The European Parliament’s constitutional affairs committee on Monday (7 March) gave its backing to a limited EU treaty change to incorporate the European Stability Mechanism into the EU treaty, only on condition that the new system is kept ‘as close as possible’ to the EU system, with the involvement of the European Commission and the Parliament.”
Basically, we are in a position whereby our Government are telling Parliament that the stability mechanism is solely to do with eurozone members and asking for authorisation for a treaty change, but the European Parliament is saying that the consequence of that change is giving the European Commission and the European Parliament a say over something that our Government tell us has no relevance to the United Kingdom.
Mr Cash
I do not know whether it is any consolation to my hon. Friend, but under the arrangements, the European Parliament has a right only to be consulted in that respect. However, it is pressing hard and I doubt that he has missed the fact that it deliberately moved consideration of the question to the date—24 and 25 March—when the European Council meets to exert pressure on it. Its ambition to get control and to insist on the Community method knows no bounds.
Mr Chope
My hon. Friend’s suspicions are well founded and backed by the facts that he gives the House. As we speak, moves are afoot on that issue.
I wish to address the remainder of my remarks to another matter—the admission of the European Union into the European convention on human rights. Page 113 of the Conservative manifesto states:
“We will never allow Britain to slide into a federal Europe.”
Yet article 6 of the Lisbon treaty and article 59 of the European convention on human rights as amended by protocol 14 provide for the European Union to accede to the European convention on human rights. On that basis, the European Union would become a non-state contracting party to the convention. It is said that it would be entitled to have a European Union judge, joining the other 47 judges from the member states of the Council of Europe, to adjudicate on issues relating to interpretation of the convention.
Clearly, that is not some innocuous move whereby the European Union submits to the European convention on human rights because it thinks that it is a good thing and desirable that European Union institutions should comply with the principles laid down in it. The European Union clearly has it in mind to put its toe in the door—or, perhaps more appropriately at this time of year, to be a cuckoo in the nest—and effectively drive out the convention and replace it with its own charter of fundamental rights, administered by the European Court of Justice.
If one looks back, one sees that the first reference in European Union law to fundamental rights was in article 6(2) of the 1992 Maastricht treaty, which provides that the European Union
“shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms…and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”
Of course, no one would quarrel with that because it basically enunciated that there is no difference between the European Union law and approach to fundamental rights and the approach of the European convention on human rights. However, since then, the EU has developed its interpretation of those fundamental rights far in excess of what was originally thought reasonable.
Mr Nuttall
Is there not the danger that the EU will allow nationals of foreign states to vote in our general elections?
Mr Chope
My hon. Friend has a point—that is part of the European charter of fundamental rights. Thinking along those lines caused one of the witnesses to the Select Committee on Political and Constitutional Reform last month to say that even if we won the day against the European convention on human rights on prisoner voting, we would find a case brought against us by the European Court of Justice—the EU would prosecute us through the ECJ for failing to comply with the fundamental freedoms it has laid down. In the same way, the bizarre ruling the other day will result in my 21-year-old daughter paying a much higher insurance premium for driving than the marketplace says she should pay. How absurd is that? That is another example of the way in which the EU uses its institutions to continue to interfere with what should be our domestic law.
Mr Cash
Both the charter of fundamental rights and the European convention on human rights, in their differing judicial aspects—the ECJ and the European Court of Human Rights—impinge on UK sovereignty. Is my hon. Friend aware that the Lord Chancellor himself took part in a European Committee two or three days ago? He and I had an interesting altercation on his assertion that the incorporation of the charter of fundamental rights does not change anything very much. However, for all the reasons that my hon. Friend is giving, to which I referred in that debate, the incorporation makes a substantial difference because it concentrates a mass of precedence from the European Court of Human Rights in the charter, and is thereby adjudicated by the ECJ.
Tom Brake (Carshalton and Wallington) (LD)
Does the hon. Gentleman agree that it is possible for a 21-year-old woman to have an appalling driving record and for a 21-year-old man to have an exemplary driving record, and therefore that their insurance premiums should be based on their driving habits?
Mr Chope
My view is that such issues should be sorted out in the marketplace by the people who provide driving insurance. If an insurance company takes that line—I am sure that some do—why can it not be given the freedom to do what it wants in the marketplace? It is absolutely outrageous that a foreign court and not even a British one should try to dictate to us how our insurance industry, which I think is the best globally, should respond to particular risks.
I note that the hon. Gentleman thinks that that is a good thing, which is in tune with the big advertisement from the Alliance of Liberals and Democrats in Europe that appears on the back page of the newspaper to which I referred. The advert says how important it is for more power to be taken away from parliamentarians and given to the European Commission and states:
“Europe needs a community not a pact”.
It goes on about how important it is for member states to
“act in unison under the leadership and direction of the European Commission”,
that there is every evidence that an intergovernmental approach does not work and that the community method is much better. I give full marks to the hon. Gentleman; he is fully in tune with the thinking of European Union Liberal Democrats, but I must tell him that I am fully opposed to all that.
Sir Peter Bottomley
Having listened to the exchange between you, Mr Speaker, and my hon. Friend, I think it would be in order for him to refer again to a proposal in his Bill. Clause 3, “Judicial notice”—a heading that might be explained—mentions “any rule of international law” in subsection (b). The first debate this morning was a debate on the Wreck Removal Convention Bill. If enacted, that will bring a convention—a piece of international law—into domestic law. How do we avoid a referendum on that under the terms of the United Kingdom Parliamentary Sovereignty Bill?
Mr Chope
Under this Bill, we would not need to have a referendum on the international convention on wrecks any more than we would on any other convention. Clause 2 says that referendums will apply to the implementation of legal instruments that increase the function of the European Union affecting the United Kingdom.
Sir Peter Bottomley
That is the assertion that I am sure is in my hon. Friend’s mind, and not one with which I would necessarily disagree, but the Bill does not say that. It reaffirms
“the sovereignty of the United Kingdom Parliament; and for connected purposes”.
Clause 1, which we have discussed, states:
“The sovereignty of the United Kingdom Parliament is hereby reaffirmed”
for one reason or another. However, clause 2 states:
“No Minister…shall make or implement any legal instrument which…is inconsistent with this Act”—
alternatively, not additionally—
“without requiring it to be approved in a referendum of the electorate in the United Kingdom.”
It was clearly explained earlier—I think my hon. Friend was in the Chamber—that if the Wreck Removal Convention Bill becomes an Act and the convention becomes international law, ratifying the convention will make international law apply to us without our Parliament having done anything more. I leave that question with him. If he does not have the answer today, perhaps he will write to me afterwards.
Mr Chope
Perhaps we will deal with that in Committee. I admit to being present during the fantastic speech made by my hon. Friend the Member for Suffolk Coastal (Dr Coffey) in support of her Bill, but I must admit that I was not following every iota of its content, so I am not sure whether what has been said on her behalf by my hon. Friend the Member for Worthing West (Sir Peter Bottomley) is a valid objection to or criticism of my Bill.
Despite my hon. Friend’s intervention, I will not be diverted from finishing expressing my concerns about the proposals for the admission of the EU to the European convention on human rights. Fortunately, my understanding is that our Government have a veto, and its details are being discussed at intergovernmental level—certainly by the Committee of Ministers of the Council of Europe this week. I hope that the Minister will realise after this debate that we need to be alert and concerned about the implications of what is happening.
I say that because on 19 May 2010, the European Parliament passed a resolution on what it described as
“the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms”.
Like most such resolutions, it is rather too long for most of us to bother to read—it runs to several pages—but I want to draw the attention of my right hon. and hon. Friends to paragraph K on page 2. It states that the European Parliament stresses that
“the main arguments in favour of accession of the Union”—
the European Union—
“to the ECHR…may be summarised as follows: accession constitutes a move forward in the process of European integration and involves one further step towards political Union”.
If that is the interpretation put on it by the European Parliament, we need go no further than getting a commitment from the Government today that they will not support this, and that in discussions on it they will play hardball, rather than the softball they have been playing up to now over EU powers.
The resolution also states that
“while the Union’s system for the protection of fundamental rights will be supplemented and enhanced by the incorporation…into its primary law, its accession to the ECHR will send a strong signal concerning the coherence between the Union and the countries belonging to the Council of Europe”.
It is actually nothing short of an attempted takeover. My hon. Friend the Member for Stone (Mr Cash) will probably be alert to the point at which the resolution states that
“accession will also compensate to some extent for the fact that the scope of the Court of Justice of the European Union is somewhat constrained in the matters of foreign and security policy and police and security policy by providing useful external judicial supervision of all EU activities”.
This is all part of the creep and incrementalism of the EU as it tries to put its finger into everybody’s pies.
Mr Cash
Given that the Prime Minister is coming to the House in about 40 minutes, will my hon. Friend bear it in mind that in the context of the matters to which he has referred—foreign and security policy and so on—it is woefully apparent that the EU had absolutely nothing to offer other than obstacles in dealing with the question of a no-fly zone, or indeed any other matter relating to Libya?
Mr Chope
That is absolutely right. Of course, we know that at the Security Council key members of the EU—France and this country—voted one way, but the Germans did not support us. They did not support us in the Security Council, but that is not the end of our friendship in Europe, and I do not think that our Government should be saying that if they do not do everything that German Governments want to do in Europe, it will undermine European solidarity. It is possible for sovereign countries to disagree on these issues.
At the European Parliament on Monday, I attended a meeting that included Mr Duff, to whom the hon. Member for Carshalton and Wallington (Tom Brake) referred earlier. It was a meeting of about half a dozen Members of the European Parliament and half a dozen Members of the Parliamentary Assembly of the Council of Europe to look into the details of EU admission to the ECHR. Important questions were posed to which no answers were given. For example, at the moment, a number of EU countries have opt-outs from various parts of the European convention or its protocols, yet the EU is proposing to sign up to the convention in toto and to its protocols. To what extent does that mean that the EU member states that have taken a different view of particular provisions of the European convention will find that, notwithstanding their reservations, they are bound into that regime by the fact that the EU has joined the ECHR?
At a time when we are concerned about prisoner voting rights, for example, and about the administration of the Committee of Ministers of the Council of Europe—will it accept our right to have a bit of latitude in the interpretation of the treaty, or will it insist on forcing through the exact terms of the judgment?—it has been proposed that the EU should join the Committee of Ministers. There is also a proposal that the European Parliament should join in part the PACE, even though the Council of Europe treaty that set up the Council in 1949 expressly provides that the members of the Parliamentary Assembly should be elected parliamentarians from the member countries that join the Council of Europe. The EU is not a country and is not signing up to the Council Europe; it is only seeking to sign up to the ECHR.
I cannot go into all the details now. However, I want to draw my hon. Friend the Minister’s attention to exactly how grave and serious the issue is and how much it threatens to undermine his and the Government’s position, which is to ensure that we do not cede any more sovereignty to European institutions. Indeed, we ought to try to regain control over issues such as the fundamental rights convention and the Fundamental Rights Agency, which we want to bring back under this Parliament’s control. I know that a lot of other people want to join in this debate, but may I just say that the Bill would be a useful way of ensuring that this Parliament has its voice? This Parliament needs to do what the MEPs are doing against us. On every single occasion, they try to extend their remit, so that they have more control. We in this Parliament should increase our power and ensure that we have greater control over what his happening in our name.
The Parliamentary Secretary, Cabinet Office (Mr Mark Harper)
So far, my hon. Friend has concentrated his speech largely on the EU and the ECHR. However, I would like to pick up on the point made by my hon. Friend the Member for Worthing West (Sir Peter Bottomley). Does my hon. Friend the Member for Christchurch (Mr Chope) intend to address clause 3(b), which talks not only about European institutions, but about international law and all of Britain’s other treaty and international obligations, which would be affected quite dramatically by the Bill?
Mr Chope
Frankly, I was not going to, but if my hon. Friend is going to use clause 3(b) as a justification for not supporting my Bill, and if he thinks that it should be excluded and that the ambit of the Bill is too wide, I will allow him to dilate on that at length, if need be, during his remarks. I am a perfectly reasonable person, and if he thinks that clause 3(b) goes too far, I might be amenable to an amendment to delete it.
Mr Cash
I think that the Minister might be in grave danger of misunderstanding the Bill’s provisions. It does not say that it will override any international law; all it says is that, under clause 2, if there is any question of an increase in the functions of the EU affecting the UK or if a legal instrument is inconsistent with the Bill, the judiciary would not be able to invoke any rule of international law in order to frustrate that provision. However, we could discuss all this in Committee, as my hon. Friend the Member for Christchurch (Mr Chope) has rightly said.
Sir Peter Bottomley
But is our hon. Friend the Member for Stone (Mr Cash) right? I am not sure that if we read the Bill from beginning to end, which is the way that I normally try to read Bills, we find that it says that. If my hon. Friend thought that he ought to curtail his speech—we thought he had just been clearing his throat—because others want to speak, or because he wants the Government to explain, I am sure we ought to stick by our normal conventions. I know that it is a rule but not a convention. My hon. Friend normally keeps the House going for quite some time when a private Member’s Bill is being promoted, and the Minister does not always have time to complete his speech. I do not see why he should change the convention simply because my hon. Friend is promoting a Bill himself.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
May I put in a bid for our hon. Friend the Member for Worthing West (Sir Peter Bottomley) as well?
Chris Bryant
No, this is an application not to be on the Bill Committee. I have heard these arguments so many times that I have no desire to hear them all over again, even if it would give us an opportunity to hear the whole of the Minister’s speech on the subject. May I point out to the hon. Member for Christchurch (Mr Chope) that greed is a sin? Taking so many private Members’ Bills on one day might be thought somewhat greedy.
Mr Chope
I have been accused of many things, but not greed. People who are frustrated legislators and willing to spend a couple of nights sleeping in the Palace of Westminster to queue up for their tickets may have the opportunity of having their Bills brought before the House. I hope that some of my other Bills on the Order Paper will be debated, not least my Local Government Ombudsman (Amendment) Bill. When I first put that title down last June, I had not anticipated that I would read in my local paper last Friday that the Hampshire county council health and safety people had interfered in the Beaulieu pancake race, so that it is now the Beaulieu pancake walk rather than race. I had not realised that my third Bill would be so relevant to a local story, but now it has a relevance above all else. I hope that we get a chance to discuss it.
Sir Peter Bottomley
I do not think that my hon. Friend should have taken the words of the hon. Member for Rhondda (Chris Bryant)—who is speaking for the whole of his party, I see—too seriously, partly because we should not accuse someone of greed during Lent, but also because the House should be grateful to my hon. Friend for bringing the Bills along together. It is no different from a group of MPs sharing a taxi: it is simply combining things. My hon. Friend is now talking about his third Bill. What about his second one?
Mr William Cash (Stone) (Con)
I am little surprised to be called so early in the debate, not least because I have dilated on this subject on many occasions. [Hon. Members: “No!”] Protests will not put me off doing so again.
I congratulate my hon. Friend the Member for Christchurch (Mr Chope) on introducing the Bill, not only because this is such an auspicious time, given that we are now in the midst of debating the European Union Bill, which is still in the other place, but because of the continuing flow of, I have to say, clearly deliberate attempts by the coalition Government to throw doubt on the sovereignty of the United Kingdom Parliament, some of which have been diverted by the European Scrutiny Committee report. I am extremely glad to note that the explanatory notes to the European Union Bill have been changed, something that has not been mentioned publicly by the Government or the media. The explanatory notes on clause 18, or the so-called sovereignty clause, which we were able to demonstrate it was not, have been revised in the light of the European Scrutiny Committee report. I am glad that they have been changed to get rid of some of the Committee’s gravest objections to how the Government were seeking to apply what is known as the common law principle. I do not need to go into all the detail because we debated it at great length.
Chris Bryant
The hon. Gentleman has referred to clause 18 of the European Union Bill, the so-called sovereignty clause. He will recall that amendments not passed in this House would have gone in the direction of this Bill. Would it not be bizarre if this House were to send two Bills to the House of Lords at the same time that were mutually contradictory?
Mr Cash
It would be highly desirable. This Bill would in fact succeed the European Union Bill in order. We know that any Act of Parliament that is subsequent to a previous Act and is inconsistent with it, particularly in the context of sovereignty issues, overrides the previous Act. Therefore, if this Bill were enacted—if it followed the European Union Bill—it would supersede it. It would thereby also have the great advantage of overriding the manifestly absurd and, I believe, completely unlawful motion—unlawful in constitutional terms—that was passed, which said that this House did not reaffirm the sovereignty of the United Kingdom Parliament. When I use the word “unlawful” in this context, I simply mean that the European Union Bill is still under consideration by both Houses. I am using that expression with regard to the constitutionality of the matter, but it is a very important question and I am glad that the hon. Gentleman has raised that point, because it is important that we get it straightened out.
I come back to the explanatory notes. The report that the European Scrutiny Committee produced, which was unanimous, particularly on clause 18, was based on evidence from pretty well all the pre-eminent constitutional experts on what sovereignty meant in the context of the European Union Bill and in general. There was complete unanimity that the Bill did not contain what was on the tin, that it did not confer sovereignty and that the provision was not needed. However, read in the context of the explanatory notes, the invocation of the common law principle, which is a very profound question that has been raging in academic circles and the establishment for a long time, has the effect of reinforcing the view expressed in certain quarters, particularly in certain parts of the Supreme Court, that the sovereignty of Parliament is qualified by the ultimate authority of the courts, which is not something that the public at large would agree with, to say the least, or, for that matter, that they even knew was happening. The expression “common-law principle” has now been taken out of the explanatory notes, which is a great victory for the European Scrutiny Committee and will help substantially to alter the position in the right direction.
I am not convinced that the argument has been completely resolved, but the discussions of the kind that we are having today are helpful in further removing any doubt about the question of the sovereignty of Parliament. That is because the sovereignty of Parliament is not a purely theoretical abstraction; it is to do with the practical application of law passed in this House and in the other place for the purpose of implementing legislative proposals emanating from the Government or other sources to reflect the views of the electorate. In other words, this is essentially a democratic question.
In cases in which European Union law, European Court of Human Rights law and European convention law contradict the wishes of the electorate, it must be made clear that the sovereignty of Parliament will override such provisions in a way that ensures that the wishes of the electorate are complied with, consistently with general election and manifesto pledges, irrespective of coalition agreements, and in a manner that guarantees that the electorate’s views are not only understood but put into effect.
Mr Jenkin
I took part in the debates on the European Union Bill, and the European Scrutiny Committee is to be commended for what it achieved in setting the record straight that sovereignty was not a common law principle but a fact of history. However, what we proposed in that Bill, and what is being proposed here, is to put the word “sovereignty” into statute. My hon. Friend’s Committee never took advice on that question, but we rather assumed that this would be a good thing to do. What does he say to those who are concerned that it would actually make the concept of sovereignty justiciable if we placed it in statute, and that we are in danger of drawing the courts into a dispute with Parliament about what sovereignty is?
Mr Cash
I accept that that is an important point, but we have been put in this position, historically and legally, by the manner in which the European Communities Act 1972 has increasingly been eating away at the way in we legislate in this House.
This is a difficult question, and I do not want to get too historical about it, but similar considerations arose at the time of the passing of the Bill of Rights, and also in the proposed constitutional settlement around 1648. At that time, the sovereignty of the monarch was regarded by the Crown as absolute, and there was a question of how to deal with that. Unfortunately, it was dealt with, in the words of Oliver Cromwell, as a matter of “cruel necessity”. Despite the fact that many people did not want it to happen, he took off the King’s head as a symbolic demonstration that the King was no longer sovereign.
Jacob Rees-Mogg (North East Somerset) (Con)
I am afraid that I would dispute my hon. Friend’s interpretation of what led to the execution of Charles I. I think it was much more complicated than that.
Mr Cash
I am prepared to accept that it was more complicated than that. I am making a point, but I defer to my hon. Friend. The real point is that the word “sovereignty” in this context has a practical, legal and factual base. We need to assert our sovereignty when it is under invasion, which is exactly what is going on now. I think that that is the simplest way to put it.
Mr Jenkin
One of the most important points made by my hon. Friend the Member for Christchurch (Mr Chope) was that there is no substitute for Parliament exercising its sovereignty. In that respect, our amendment to the European Union Bill and the Bill before us are a cry of despair. They are not a substitute for Parliament exercising its sovereignty. No amount of legislating for parliamentary sovereignty will match the exercise of our sovereignty. As one of my hon. Friends said to me this morning, it is a bit like the parish council beating the bounds of the parish. It is a long time since we exercised our sovereignty in that way here, but sooner or later we are going to have to do so, to prove that we still have it.
Mr Cash
The question also arises in the context of assertions by the courts. It is important that we respect the independence of the judiciary, but the judiciary in turn must respect the rights and privileges of the elected House of Commons and, indeed, Parliament as a whole. The claims that have been made, which are set out in the European Scrutiny Committee report, clearly demonstrate that moves are not only afoot but under way to qualify the sovereignty of the United Kingdom Parliament and Acts of Parliament. Such moves fall back on an assertion that they are relying on the rule of law. I have asked questions about this repeatedly, not least in a debate in Westminster Hall yesterday on the Bill of Rights, and suggested that we ask these questions: whose law, which law, and how has it arisen?
Henry Smith (Crawley) (Con)
This country has an evolving constitution that is not written down in any one place. Does my hon. Friend agree that there is a danger of authority slipping away from Parliament unless we restate that?
Mr Cash
That is completely right, and I am grateful to my hon. Friend for not only his intervention but his notable contribution to the European Scrutiny Committee, of which he is a member.
The question of amending the Bill gives me an opportunity to set out another short clause that might be added to it.
Mr Cash
I would just like to get this out of the way, if I may, because it is quite a useful and explicit affirmation of what we could do in practice to ensure that there is no doubt about what is being done. The new clause in question could be phrased in this way: “Any Act of Parliament or legal instrument expressly stating that that Act or instrument shall be ‘notwithstanding the European Communities Act 1972’ or ‘notwithstanding the European convention on human rights and the Human Rights Act 1998’ shall be construed by the courts of the United Kingdom as having the effect of disapplying and overriding any Act or legal instrument to which it refers.” That would put the position completely on all fours with the evidence that we have received from the constitutional experts.
For many years, I have said that we need a way to get round the problem of provisions emanating from the European Communities Act 1972, and the treaties and legal instruments made under it, being inconsistent with our national interests. To achieve that—in line with cases such as Macarthys v. Smith under Lord Denning and Garland v. British Rail Engineering under Lord Diplock, which remain good law despite what the Supreme Court has said recently—we need, precedent to an Act of Parliament and in relation to European Union legislation, to use the expression “notwithstanding the European Communities Act 1972” to make it clear that we are legislating subsequent to an existing enactment and expressly inconsistently with it. That would oblige the courts to give effect to the later legislation. There are occasions when it is clear that the Government would want to do that but cannot do it, or do not want to do it, or would prefer the whole subject to go away. I am looking closely at the Minister at this point. There is nobody who wants this subject to go away more than the Prime Minister does.
It is a problem. I recognise the dilemma, and I have to say, in all fairness, that I have absolutely no doubt about the need for the remedy. I understand that there are inconveniences in having the European Union producing legislation that this country does not want, which might have been thought to be a good idea in the past. Some thought that the working time directive was a good idea, but it has turned out to have all kinds of unfortunate consequences. The same could be said of other matters such as the over-regulation of business.
When we were in opposition in 2006, I tabled an amendment to the then Government’s Legislative and Regulatory Reform Bill, based on the “notwithstanding” formula, in order to improve the opportunities for British business, helping it to grow and get away from unnecessary burdens imposed by the European Union. During the afternoon that I proposed that amendment, a series of Whips’ meetings took place. The Whips came to me and said, “Bill, would you be good enough to allow us to adopt your amendment and to put in Tellers?” When the vote took place on the words
“notwithstanding the European Communities Act 1972”,
teams of the present Government walked through the Lobbies to support my amendment, which they had adopted—and six weeks later on a whipped vote in the House of Lords, they reconfirmed it. There was no doubt about the intention there. The principle is thus established by the European Scrutiny Committee report, by the evidence we received and by the conduct of the Prime Minister who was then the Leader of the Opposition.
Mr Cash
We could do that, although it might not be desirable or necessary to do it for every Act of Parliament. I shall come on to some cases later, but we are about to go into an adjournment, if that is the right expression, when the Prime Minister will make an important statement on Libya and the UN resolution. I believe my hon. Friend the Member for Wellingborough (Mr Bone) made an important point, which clearly summarises the position. It would not need to apply to every Act of Parliament, but only where it was necessary in respect of European Union law or the European convention on human rights—on issues like votes for prisoners, for example.
Angie Bray (Ealing Central and Acton) (Con)
May I ask for a little more clarity? If my hon. Friend gets his way, will it mean that we would no longer have to beat the bounds, so to speak?
Mr Cash
We would not have to beat the European bounds, that’s for sure, but my hon. Friend makes a valid point. The problem has overtaken the history of this Parliament, so it is important that we get back to first principles—that we should legislate in accordance with the wishes of the electorate. My hon. Friends the Members for Wellingborough and for Christchurch, I and many other Members here today have argued for a full and effective referendum to deal with this question in line with the wishes of the electorate, but in between times, we are being affected in our daily lives by a stream—a tsunami—of legislation emanating from the European Union, much of which is an obstruction and an obstacle to the generation of economic growth in this country at a time of austerity when the deficit requires us to improve our legislation in a manner consistent with creating growth and business opportunities. All that shows that this is not just a theoretical question; it is about the practical impact of the European Union on the daily lives of the electorate. [Interruption.]
I am delighted to see that the House is filling up with Members, but I have a feeling that it has to do with something other than the Bill proposed by my hon. Friend the Member for Christchurch. However, it provides an opportunity for us to get our case across to the more exalted Members of this House—at any rate, members of the Executive—so that they can benefit from knowing that we are engaged in these difficult times in ensuring that we reaffirm the sovereignty of the UK Parliament.
I also see the Deputy Prime Minister, so I point out to him as he assumes his place that his suggestion that we will not repatriate our laws, despite the Conservative manifesto which said that we would, is in the minds of many people in the Conservative part of the coalition and it is still absolutely on the agenda. We repudiate his suggestion that there will be no “backward step”, as he puts it; we will repatriate, because we will insist on doing so. We will do so through the aegis of the sovereignty of this Parliament when there is a clear threat from European legislation or legislation emanating from the European convention on human rights or the European Court of Human Rights—whether it is on votes for prisoners, or whatever. We will insist that the legislation we pass in this House reflects the wishes of the electorate, not just those of the cognoscenti, the elite, the establishment or those who form part of the present coalition. We respect the Executive, but we beg to differ, and we insist that under no circumstances whatever will we allow the sovereignty of the UK Parliament to be overridden by assertions from the Deputy Prime Minister or anybody else.
Mr Nuttall
My hon. Friend heard from many experts when he chaired the investigation of the European Scrutiny Committee into clause 18 of the European Union Bill. Will he clarify that the matters of concern expressed this morning about this House’s loss of sovereignty were confirmed by many of the experts from whom he heard?
Mr Cash
They certainly were; most of the experts took this view.
Now that the Prime Minister has come into the Chamber, may I take the opportunity to congratulate him on the manner in which he asserted in his own way the sovereignty of this country in his determination to ensure there is to be a no-fly zone over Libya? The very fact that he was able to do that, notwithstanding the impediments put in place by the European Union and others, demonstrates precisely what we are saying in this debate—that it is the sovereignty of the UK Parliament that lies at the heart of how we conduct our affairs in this country. In respect of the no-fly zone and related matters, the Prime Minister has done this country a great service. He has demonstrated that, notwithstanding the obstacles put forward by other members of the European Union, we still have residual powers, although I wish they were much greater.
If this Bill were to go through, we would override the amendment that was, unfortunately, passed a few weeks ago, which did not reaffirm the sovereignty of the UK Parliament, and we would put it right. I am extremely glad for the opportunity to debate this matter at this auspicious time.
There are many practical aspects to the Bill, which I shall come on to later. I understand that the Prime Minister has an important statement to make to bring us up to date about Libya. I shall move on to the more practical issues afterwards. I shall seek to demonstrate why we must insist that the European Union does not ride roughshod over the wishes of the electorate, as it has done so frequently in the past. We must reassert the supremacy of this House, whether it be on issues like prisoners’ votes or—
Proceedings interrupted (Standing Order No. 11(4)).