European Union Bill

David Nuttall Excerpts

Tuesday 11th January 2011 Commons Chamber

[Charlie Elphicke]

Thank you, Mr Gale. You have saved me from having to get myself out of that one.

[Mr David Nuttall (Bury North) (Con)]

My hon. Friend made a point about the explanatory notes. Is not the real problem with clause 18 enunciated in paragraph 109 of those notes? It states:

“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law.”

That is what upsets the British people, and it is for that reason that we ought to put the matter of sovereignty and of our continued membership of the EU to the British people in a referendum.

[Charlie Elphicke]

Personally, I believe that it is wrong to see EU law as having primacy. I underline again that the UK Parliament is sovereign, and has decided to be part of the EU and allow its laws into our national life through the medium of the European Communities Act 1972. Equally, it is abundantly clear that the UK Parliament could change that position. To my mind, clause 18 amounts to a codification of that principle, which is clear from the Factortame case and from the metric martyrs, Thoburn case. In the latter case, as Members will recall and as paragraph 107 of the explanatory notes explains, it was argued that EU law

“includes the entrenchment of its own supremacy as an autonomous legal order”.

That argument was rejected. It is an important principle to understand: there is no autonomous legal entrenchment from the European Union. It is taken into account and part of our law only because we have made it so.

I can do no better than quote Lord Justice Laws, who hit the nail on the head. He said:

“Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the European Communities Act.”

When I was a law student, studying my books, I always viewed Professor Dicey’s principle as giving voice to the doctrine of parliamentary sovereignty. It is quite simple—I always thought of it as: the last Act to hit the statute book takes precedence. If it says anything different from a previous Act, the latter is discarded to that extent.

--- Later in debate ---

[Mr Nuttall]

I am conscious of the fact that this has been a long debate and that there are many points for the Minister to respond to so I shall keep my remarks short. Much of what I would have said has been admirably covered by my colleagues on this side of the Committee.

It is a sad indictment of how much power has drained away from the House that we have to debate a sovereignty clause. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd), who is no longer in his place, said that when he came to the House in 1979, such a debate would have been unthinkable. We must ask why we are in this position now. Obviously, it is because of the European Communities Act 1972, which was the start of the problem. As a result of that Act, the House handed over to Brussels—in those days it was not the European Union but the European Economic Community—the power to take decisions on behalf of the British people on matters of commerce. Over the years, that power has expanded to include many different areas.

I know from my constituents that time and again they are infuriated by the amount of legislation affecting their everyday lives that emanates not from Parliament but from the European Union. I congratulate the coalition Government on trying to do something about this problem, but, sadly, I fear it is too late—like shutting the stable door after the horse has bolted. The problem is that the powers have already gone and we are just putting a sticking plaster over what is sadly now a gaping hole.

I pay tribute to my hon. Friend the Member for Stone (Mr Cash) for attempting to stiffen and improve clause 18 on the House’s sovereignty. We should not have to say that this House is sovereign—as Lord Tebbit said in an article a few weeks ago, it is rather like the drunk in the bar saying he is sober. The House is sovereign and we should not have to keep saying so. The clause seems to do no more than state what we already know to be the position. It does not try to amend the law at all. It was sensible of the European Scrutiny Committee, as soon as it saw the Bill and this clause, to embark on a detailed examination of what they meant, sensibly calling witnesses before it. The House sets up Select Committees, so it makes sense to heed what they say. The Committee and its Chairman have tabled the amendments to the Bill and for that reason, among others, I will support their amendments.

There are doubts about why it is necessary to include clause 18 in the Bill. The amendments seek to clarify the position, and to make it easier for judges to examine the reasons why the clause has been included, should they ever be in the position of determining where sovereignty lies, as they will see that the House wants to ensure that it lies here with the House. We derive our power from the will of the British people, who give us power. I believe that that power should stay with us in the House, and not be passed to Brussels, but those are arguments for another day. Today is about how we make best use of the work that has been done by the European Scrutiny Committee to strengthen clause 18, and for that reason I support the amendments.

[The Minister for Europe (Mr David Lidington)]

I am grateful to all right hon. and hon. Members who have taken part in today’s debate: my hon. Friends the Members for Bury North (Mr Nuttall), for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris), for Harwich and North Essex (Mr Jenkin), for Aldridge-Brownhills (Mr Shepherd) and for Dover (Charlie Elphicke); my right hon. Friend the Member for Wokingham (Mr Redwood) and my hon. Friend the Member for Stroud (Neil Carmichael); and equally the hon. Members for Luton North (Kelvin Hopkins), for Caerphilly (Mr David), for North Durham (Mr Jones), for Dunfermline and West Fife (Thomas Docherty), and for Linlithgow and East Falkirk (Michael Connarty).

The debate has moved between passion and intense thoughtfulness, and both those qualities were demonstrated in the opening speech of my hon. Friend the Member for Stone (Mr Cash). Although he and I have our differences this evening, I want to place on the record my respect not just for the contribution that he has made to tonight’s debate but for the commitment that he has shown in his chairmanship of the European Scrutiny Committee. He is a gentleman with whom I may disagree from time to time, but I happily salute him as a patriot and a champion of the rights and privileges of the British Parliament. We differ over which form of words and which draft of amendment will best accomplish the objectives that we seek. As today’s debate covers both the question of approving clause 18 and the amendments and new clauses that have been tabled, I want to structure my comments first by making clear the Government’s purpose in introducing the clause and then going on to address the individual amendments and new clauses.

Clause 18 addresses the concern that the principle of parliamentary sovereignty, as it relates to European Union law, might in future be eroded by decisions of the United Kingdom’s domestic courts. It would provide authority that could be relied on to counter arguments that European law could become an integral and autonomous part of the UK’s legal system independent of statute. It responds to concerns that the doctrine of parliamentary sovereignty as it relates to EU law may not be unassailably absolute, and may be qualified. The concern is that the doctrine of parliamentary sovereignty is part of common law—a point illustrated by the report by the European Scrutiny Committee and the evidence it took, and clearly a matter that is subject to intense academic debate and contention.

The risk is that British courts might, in future, be attracted to the argument that European law no longer takes effect in this country by virtue of an Act of Parliament but has become entrenched in our legal system, enjoying an autonomous status—in the jargon, it has become a basic “grundnorm” underlying the UK legal system, to be applied by our courts and against which ultimately UK legislation falls to be measured.

There are three main sources for that concern. The first stems, yes, from the arguments run by the counsel for the prosecution in the so-called “metric martyrs” case of Thoburn v. Sunderland City Council. It is worth saying a little about that case because the issues raised were of great significance. The prosecution argued that the European treaties’ effect in domestic law did not depend—merely, at least—on the terms of their incorporation by the European Communities Act 1972 but, to a decisive extent, on the principles of European law itself.

The argument was that European law had been entrenched rather than merely incorporated, by virtue not of any principle of domestic constitutional law but of principles of Community law already established in cases such as Van Gend en Loos v. Nederlandse Administratie der Belastingen and Costa v. Enel, to which hon. Members have referred in this debate.

If that argument had prevailed and if it were to prevail in the future, we would need to think about what the practical effect might be. For example, let me take the prohibition on discrimination on grounds of nationality set out in article 18 of the treaty on the functioning of the European Union. Our courts have recognised that the provision has direct effect in the United Kingdom. Under the prosecution’s principle in the “metric martyrs” case, the courts would interpret that prohibition and seek to enforce it as part of UK law, even if Parliament were to remove the statutory mechanism by which it had been given effect in the UK, by either repealing or amending the European Communities Act 1972.

But if we pass clause 18 and enshrine in statute the principle that the authority of European law derives solely from Acts of Parliament, then the courts could not do that because article 18 could have direct effect in the UK only because Parliament had provided a statutory mechanism to allow that. If that statutory mechanism were to be repealed without replacement, there would be no basis on which it could be given direct effect in this country. Although those arguments were rejected by Lord Justice Laws, they could well be made again in future cases.