European Union Bill

Chris Bryant Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr Cash]

I am grateful to my hon. Friend, because as I mentioned earlier, under the Constitutional Reform Act, there is no displacement of the doctrine and, indeed, the constitutional principle that judges may be removed by an address of both Houses of Parliament. Furthermore, as my hon. Friend has mentioned the 17th century, the 1610 case of Dr Bonham continues to apply, up to and including the 2005 Act. Lord Chief Justice Coke asserted that the common law could usurp Acts of Parliament—I am paraphrasing, but he was specific—but he was dismissed by Parliament for making such assertions. My hon. Friend’s point is therefore well made, and was part of the constitutional settlement in the Act of Settlement 1701 and is still part of that settlement by virtue of the Constitutional Reform Act 2005.

[Chris Bryant (Rhondda) (Lab)]

Notwithstanding that, Coke was one of this country’s greatest Chief Justices. The hon. Gentleman appears to be arguing that we do not need to define parliamentary sovereignty, because it is a well-established and well-understood concept, yet he is clutching a book, which I assume is by Jeffrey Goldsworthy, who has written a lengthy, dense book on the subject. Indeed, he has written two books on it, including a recent one, so it is clearly not as simple as the hon. Gentleman would like to suggest.

[Mr Cash]

What is simple is that the concept of parliamentary sovereignty requires some explanation, and Jeffrey Goldsworthy does that. The question is not merely about parliamentary sovereignty; it is also about the manner in which the courts apply themselves to that doctrine. That is where the mischief lies and that is what my amendments would deal with.

I should like to respond to the Government’s reply, published only yesterday, to the European Scrutiny Committee. The Government say that they have never claimed that parliamentary sovereignty is under threat from EU law, but a problem remains for them. The evidence to the Committee was that that could well change in future, given current judicial trends; that is exactly what we were told.

The Government claim that disapplying EU law, an issue that has just been raised, would have unacceptable consequences—with infraction proceedings, and so on. But I make the point clearly that according to the evidence that we received, not only are several countries already in breach of EU law—France’s deportation of Roma immigrants, for example; no action was taken—but there is non-compliance on a massive scale. We know all about that, with the stability and growth pact.

There has also been the more recent failure to comply even with EU law itself in respect of the financial stability mechanism. Anybody with two brains to rub together would know that article 122 could not possibly justify—[Interruption.] Well, “Two Brains” could. No one could justify the use of article 122 for the purposes of that mechanism. If in the national interest, Parliament decides to do so, that is that. We obey EU law only in so far as it is a matter of statute and continues to be regarded as a matter of national interest.

As to the background of all this, my right hon. Friend the Prime Minister made several speeches before the general election that clearly demonstrated that we would no longer allow Britain’s laws to

“be decided by unaccountable judges.”

He said that their role was to interpret not to make law and that the sovereignty of Parliament needed to be safeguarded not only from the EU but from current trends in judicial thinking. We were promised last year:

“you can be assured that you have a Conservative prime minister who will act in the national interest. And putting your country first is about the most important Conservative value there is.”

The Prime Minister also said:

“The Conservative Party has always been a party that puts the national interest first.”

I absolutely and entirely agree. By the way, it was Disraeli who said that the Conservative party was a national party or it was nothing; I agree with that, too.

The tragedy is that the coalition and the Liberal Democrat influence in the formulation—and subsequent discussions, I suspect—of clause 18 and the Bill as a whole have gone a long way towards undermining the commitment to putting the national interest first. I fear that, far from working together in the national interest—and it is not just on this one clause—we are now witnessing policies that in relation to matters as important as the sovereignty of Parliament are actually working against the national interest.

That could be remedied very simply by dealing with the omissions, dangers, ambiguities and hazards that the clause throws up and by accepting my simple and modest amendments. My challenge is this: will hon. Members vote down an amendment that says:

“The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed”?

We all know that it is not possible to constrain the judiciary in relation to EU law except by using clear words. Those are lacking in clause 18, and I have substituted words that have the appropriate effect.

--- Later in debate ---

[Kelvin Hopkins]

I voted for devolution, so one could say that, but I leave it to the hon. Gentleman to pursue that point further. I would prefer to see us remain within the Union, perhaps with devolution, and I remain a Unionist in that sense.

[Chris Bryant]

I have been listening to my hon. Friend, and I have now caught up with where he was two paragraphs ago. He was arguing, as far as I could tell, for absolutely no wriggle room for judges—I think that that was his phrase. The danger of that is that it seems to sweep aside the whole history of English common law. Many of our laws have been developed by precedent in cases that have gone through courts where the judges have made an interpretation. Surely he is not really trying to sweep that aside.

--- Later in debate ---

In other words, we have European law because this House voted for it in former times and continues to keep the country in the EU. So long as we are in the EU, that is the choice of the House.

[Chris Bryant]

I completely agree. My anxiety about the codification process is that it is dangerous of itself, because it invites the courts to make judgment on the matter.

The hon. Gentleman referred earlier to referendums on whether we should stay in the EU or leave it. Would he support an amendment calling for such a referendum?

[Charlie Elphicke]

If the hon. Gentleman is planning to table an amendment on an in-out referendum, I will consider it. That is a matter for the House to debate, but I am concerned that he is trying to tempt me to stray from the subject matter of this group of amendments, which is sovereignty.

I am concerned about paragraph 106 of the explanatory notes, which states that clause 18 places on a statutory footing

“the common law principle that EU law takes effect in the UK through the will of Parliament.”

As a lawyer, I know that that is not a common law principle, as I am sure most lawyers do. It is a constitutional principle. No one case decided that Parliament was sovereign. It is sovereign, and it cannot resile from that sovereignty.