European Union Bill

Austin Mitchell Excerpts

Tuesday 8th March 2011 Commons Chamber

[Jacob Rees-Mogg]

The hon. Gentleman has half got what I have been saying and has half misconstrued it. I do not think it right that laws passed by Parliament should be put on a different level based on what judges think of them retrospectively. I do not think that that is a democratic way of deciding which law is important and which is unimportant. One may think that the judges will always get it right, but what if they decided that the Dangerous Dogs Act 1991 was amazingly important and this Bill was not, so that the 1991 Act could not be impliedly repealed, but one giving people a vote in a referendum could be? What I am saying is that it is better for us to take this power upon ourselves and say, “Okay, this is an important Act. We’re going to put that in, and say that it is exempt from the Parliament Act 1911.”

The hon. Gentleman asked a good question, which is: why start with this particular Bill? The reasons for starting with this Bill are, first, that the judgment putting the 1972 Act on to a higher plane is relatively recent, and secondly, that I was elected to Parliament only last May and have therefore not had the opportunity before to propose such a measure on a major constitutional Bill, other than the Fixed-term Parliaments Bill. The reasons for starting with this Bill are because of that judgment, and because I am now in a position to do this. It would have been a good thing to do earlier, on other constitutional Bills, including on devolution to Scotland.

[Austin Mitchell (Great Grimsby) (Lab)]

I am always impressed by the hon. Gentleman’s displays of legal knowledge, but surely his whole point is spurious. The judges’ argument is irrelevant and wrong: there is no distinction between some laws passed by Parliament and others. We cannot say that some are constitutional and others are not. That distinction does not exist: they are all of equal standing. The point that he is trying to make is also irrelevant, because he is appealing to a constitution that does not exist. Essentially, the British constitution is what Governments can get away with, and they get away with it in this place.

[Jacob Rees-Mogg]

I so wish that the hon. Gentleman, who is a most distinguished Eurosceptic, were right, but unfortunately the judges have taken that power to themselves. I return to what Lord Justice Laws said in his judgment on the metric martyrs case:

“Ordinary statutes may be impliedly repealed. Constitutional statutes may not.”

The judges have set up for themselves two different types of Act. It seems to me that we should claim that power back for the democratically elected Chamber of Parliament, and say that when we think an Act is of significant constitutional importance, what we will do is not entrench it—that is against the spirit of our constitution—but give it a modest protection by saying that it can be repealed only with the full consent of both Houses. The great advantage of that, for those of us who remember what happened prior to 1911, is that it would require a Government to win a general election—to go back to the people—before they could get something through the House of Lords, if the House of Lords said no. That happened in 1911, with the reforms to the House of Lords, and in 1832, with the Great Reform Bill. That provision has been an historic and traditional way of protecting our democratic rights—one that, oddly, involves the undemocratic Chamber—and that is why I think it would improve the standing of this Bill. It would protect the democratic rights of the British people and deal with the constitutional situation as it is—as the judges have developed it—rather than the constitutional system as the hon. Gentleman and I might wish it to be.

--- Later in debate ---

[Michael Connarty]

Just to remind everyone who reads these tomes, the 1972 Act embodied a decision by this Parliament that laws, directives and regulations drawn up by the European Union should take primacy over an Act covering the same area passed by this Parliament. It was our decision to use our sovereignty to give that primacy as part of the deal of going into the European Union.

My understanding of the evidence is that if we passed an Act that did not contain a “notwithstanding” clause or set out to be a deliberate challenge, and that simply put in place a law that we wished to have, it would have to be challenged and taken to the European Court of Justice before it created any conflict. So the question is: do we accept that that was right and that the judges have the right to do that?

I suggest that if the hon. Member for North East Somerset genuinely wishes to see that change, he should not apply to the good offices of the 1911 Parliament Act. I agree with the hon. Member for Dover (Charlie Elphicke) that it is wrong that we should appeal to an undemocratic institution. I believe that we should look to a justice Act of some kind to determine that judges cannot make such a ruling or decide that there are two kinds of laws in this country. Some people think that the European Union takes up a lot of time, but I think that the more important laws are those that will determine what is going to happen to people’s pensions in this country or to their employment rights. I hope that the hon. Member for North East Somerset will come back to the House with a justice proposal, which I would be happy to support, saying that the courts cannot make a ruling that overrules the right of this democratic Chamber to decide the law of this land.

[Austin Mitchell]

I am trying to follow the argument, but, being a European argument, it is very difficult to follow. Surely the situation is that if we pass a law that negates the implementation of a European Union law in this country, our courts would have to accept the European Union law rather than ours. We could not pass such a law unless we specifically exempted it from the European Communities Act 1972.

[Michael Connarty]

My hon. Friend’s point is correct, but that is not what we are talking about. He describes a situation in which this or any Government decided to challenge the original decision. A law could be passed that would continue to run contrary to European Union law; I believe that that is happening in many countries. We and the Norwegians are the most obsessed with trying to get everything right in terms of fitting in with European directives. A challenge could be made, however, and we would then have to decide whether it was right for us to negotiate a change in the relationship or to abandon our law and accept the ruling of the European Union. At the moment, that does not happen.

My main point is that we in this democratically elected Chamber can overturn these decisions at any time if we have the will to do so. We are not bound by them for ever. Like any other law, we will be able to challenge this legislation in this Chamber, which is why I do not believe that we have to go through the rather tortuous, although eloquently described, process of applying an amendment to the Parliament Act 1911.

On the ability of the Lords to protect us from changes to our democracy, they have not protected us from this shabby coalition, which is proposing a law that would guarantee that the coalition would run for five years—a proposal that I spoke against in the first debate in this place after the election—unless the shabby minority part of that shabby coalition, the Liberal Democrats, decide to pull it down, because no other person in this place could do that. If the Lords could protect us from that, I might have more confidence in the 1911 Act.