United Kingdom Parliamentary Sovereignty Bill

Chris Bryant Excerpts

Friday 18th March 2011 Commons Chamber

[Mr Chope]

Okay.

[Chris Bryant (Rhondda) (Lab)]

rose—

[Mr Bone]

He wants to be on it too!

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[Chris Bryant]

Will the hon. Gentleman give way?

[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.