European Union Bill

Kelvin Hopkins Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr Cash]

I congratulate my hon. Friend on that extremely perceptive remark. I entirely agree with him. If that were the case, we would not be where we are now. That is part of the lesson. [Interruption.] That might be true too, but who knows.

My new clauses and amendments to clause 18 would put the matter beyond doubt and I cannot for the life of me see why they cannot be accepted in the national interest. I believe firmly that they would have been accepted under a Conservative Government and we know that in 2006 we were almost there. The very fact that the Government might obtain a majority for the legislation should be of no comfort or satisfaction to anyone in the country, inside or outside Parliament.

In that past, those of us who have been criticised or perhaps underestimated for our predictions on Europe need only to look at the record to see how often some of us have been proved right in the national interest. Winning a vote does not always come into that category. I can only hope that failure to accept the clarification that my amendments would give will not, in a few years’ time, have seemed in retrospect a price worth paying, rather than seeking to uphold on every score a coalition of parties that on matters relating to judicial supremacy, the European Union, a written constitution and the national interest are often fundamentally poles apart.

“The fault, dear Brutus, lies not in our stars,

But in ourselves, that we are underlings.”

[Kelvin Hopkins (Luton North) (Lab)]

It is a great pleasure to follow a speech by the hon. Member for Stone (Mr Cash). I strongly support his amendments and hope they will be divided upon. I shall certainly be voting for them and I hope that many Labour Members will also be supporting him. He has made his position very clear and, even to a non-lawyer such as me, he has made the issues understandable.

The sovereignty of Parliament is something that voters hold very dear. We are not a polity where people mistrust Government, as is the case in many other countries, where people have had experiences that have made them historically mistrust Government. We accept that Parliament decides things on behalf of voters and if they do not like what we do, they can get rid of us individually and collectively and change their Government. One of the reasons why, among other things, I so strongly support the first-past-the-post system is that it means that electors can choose Governments. I do not want to touch on sensitive matters now, but such a system means that Governments are not created by post-election deals between parties. Sorry about that, but there we are.

By and large, people choose their Governments and do not like their judiciary to be interfered with by politicians. The judiciary should be independent and should act on the basis of statutes, which are clear and do not leave too much scope for interpretation by judges, who are human beings and have political views like anyone else. Statutes should be very clear. The hon. Member for Stone is trying to make this bit of statute very clear, so that judges do not have wriggle room or scope for interpretation. Whether judges are Euro-enthusiasts or Eurosceptics, they must act according to a clear statute

We have seen what has happened on the continent of Europe. Let us consider the European Court of Justice, about which I am deeply suspicious because it clearly acts in a political way. It has done so on more than one occasion but, as a trade unionist and a socialist, I was dismayed by its judgments in the Viking Line dispute. It found in favour of the employers, which I thought was a political judgment, not a judicial decision. We want to avoid such a situation occurring in Britain. Lawyers should make decisions on the basis of laws that are decided by Parliament, particularly by this House, and there should not be scope for interpretation. That is, of course, most important in matters involving the European Union, because it is wilfully trying to assert laws over and above us in a supranational way, which many of us deeply resent and are suspicious of.

I have said many times in this House that I want a European Union that is a looser association of independent democratic member states where we come together on matters on which we all mutually agree for mutual benefit, but is not a supranational organisation imposing laws and giving itself powers that we cannot resist.

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

I wonder whether the hon. Gentleman would be an enthusiast for extending that principle to not only the European Union but the British Union.

[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.

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[Kelvin Hopkins]

I accept what my hon. Friend says, of course, but it depends on how much wriggle room there is. Even with a very well-drafted and carefully written statute, there is sometimes a degree of breadth in what can be decided. If we leave too much wriggle room, judges, being human beings with political views like anyone else, will take advantage; there is no question but that they would do that. It is our job to ensure that they cannot take advantage of this House and of the will of the people.

[Mr Cash]

Does the hon. Gentleman agree that it is also becoming apparent that some statutes have deliberate ambiguity put into them, and that that may be the case with clause 18 in order to allow the courts to get their hands on it and to construe it in line with the principles that they are beginning to enunciate?

[Kelvin Hopkins]

Indeed; the hon. Gentleman makes an important point. My concern is based on a suspicion that the Government are deliberately trying to leave this open and not have it pinned down so as to give wriggle room for future political events and developments. When something that appears to be so straightforward is resisted so strongly by a Government—even by my own when I was on the Government side of the House—I am always suspicious that there is a reason behind it, and that somewhere in the Government machine there are people wanting to ensure that something does not happen and that they have wriggle room in future. I do not want that to happen.

Like the hon. Member for Stone, I want to make it clear that the sovereignty of the British Parliament is retained as it should be. The people of Britain have made it clear that they want that to happen as well. Overwhelmingly, they are sceptical about the European Union, and it is our job to reflect that scepticism and not to give away to the European Union more potential power over this Parliament. We owe that to our electors. I certainly support them in that, and I support the hon. Member for Stone’s amendment.

[Charlie Elphicke (Dover) (Con)]

Underlying this entire debate about the European Union, sovereignty and the exact meaning of clause 18 is the fact that many Members of this House, myself included, would like to see a fundamental change in our relationship with the European Union. We would like to have a discussion about whether we control, or Europe controls, what happens in the regulation of the City, industry and business, and how we operate as a nation. There is an underlying desire on the part of many hon. Members to have a review of whether we should be part of the European Union at all. There is a desire to have a reworking of the Human Rights Act 1998 and a question mark as to whether it should be on the statute book at all—a concern that I share and that my constituents continually write to me about with a great level of invective.

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[Mr Redwood]

The Crown was sovereign once. It is intriguing that we are more than two hours into this debate but so far we have talked only about parliamentary sovereignty, even though the sovereignty technically still belongs to the Crown in Parliament. We all know about the events that took place over several hundred years, particularly when they were accelerated during the 17th century revolution and crisis. There was a large transfer of power from the Crown to Parliament. When a sufficiently large transfer of power takes place from someone who was sovereign to those who would be sovereign, a point is reached at which that sovereignty passes because enough power has been surrendered and the arrangements have changed sufficiently.

As other Members have suggested, we need briefly to look at how that very big transfer of power occurred in the 17th century from the Crown to Crown in Parliament and, in due course, effectively to Parliament standing on its own. One important factor was that Parliament was very good at aggregating power to itself. In those days, it decided to be very nice to bankers, which worked very well for it, because it got the City of London and the men of finance on its side. In those days, the English Navy did not have French ships in it, and Parliament made sure that it responded to the English Parliament. Parliament also took the precaution of hiring and training and paying—something quite unusual in those days—the best army in the country. It got over the problem of competing armies and, in due course, established that it had military power and could command the Army.

Parliament also needed to deal with the judges. It was established during the revolutionary period that judges were necessary and that, according to our current tradition, they had to be independent and should not interfere in parliamentary matters by trying to make the law. They simply had to deal with the law as Parliament provided it. We therefore eventually ended up with a very powerful Parliament.

In the 19th and 20th centuries, Parliament did something that everyone in the House is now united in admiring: it made the exercise of power by Parliament a democratic matter by extending the franchise until practically every adult in this country was able to participate in elections. That gave Parliament the authority of having a democratic voice and mandate. The question that we are debating today is whether that great democratic settlement, in which most Members believe, is now under threat from judge-made law, from European-made law and from other centres of power. Could parliamentary sovereignty come under pressure in the not-too-distant future? Is it being damaged because too much power is being transferred? These questions account for the nervousness, certainly on the Conservative Benches, about the degree of power that has already been surrendered by successive Parliaments over the years, particularly under the most recent Government following the treaties of Nice, Amsterdam and Lisbon. Under those treaties, a large number of areas were transferred either to joint decision taking or to sole European decision taking.

That means that the exercise of power in many important areas of activity, including regulation, the expenditure of money and the provision of public services, now emanates from the continent. Those powers are trying to establish their own democratic credibility through the European Parliament. They are also trying to establish their own judicial credibility through the European Court of Justice, and their own administrative credibility by strengthening the powers that are exercised around the various collective corporate tables that constitute the ever-evolving, and ever more powerful, European Union settlement.

The nub of our debate today is whether there is something that this Parliament could and should do, no matter how much power has passed, how many decisions are taken through the European Union and how much money it now takes to itself and spends on our behalf, to make it clear that, should we want those powers back, we can have them back. If we wish to change or moderate what the European Union is doing, do we have every right to do so because we are still the sovereign?

Some of us fought long and hard to keep the currency under British sovereign control. These arrangements involve a British sovereign and preserve the settlement of the Queen in Parliament, and the Queen’s face appears on the banknotes of the realm, but we all know that they are Parliament’s notes and that they represent an expression of parliamentary sovereignty. Indeed, it was this very Parliament that, by a majority, approved the previous Government’s decision to print a lot more of those notes—or electronic notes—as an expression of what that sovereignty can do for the people of Britain. We can argue about whether that was a good thing or a bad thing, but it was an undoubted expression of sovereignty.

[Kelvin Hopkins]

Wisely, Britain already has a number of opt-outs from the European Union. I am thinking specifically of the single currency; it was to the great credit of our former leader that he kept us out of the euro. Would not a test arise, however, if Britain decided to opt out of something that we currently opt into? For example, if we chose to withdraw from the common fisheries policy and to place our own historic fishing grounds under democratic British control, would not that represent a test of our sovereignty?

[Mr Redwood]

Indeed; the hon. Gentleman makes a powerful point. I, too, would like us to opt out of the common fisheries policy. I would like us to elect a Government in this country who had the necessary majority to go off to Brussels and say, “It is now the settled will of this Parliament that we want different arrangements for fishing, and if you will not grant them through the European Union arrangements, we would like to negotiate our exit from the common fisheries policy.” That is exactly the kind of renegotiation that many of my hon. Friends were elected to achieve, and, had we had a majority, we would have wanted our Government to do something like that. There are a number of other policy areas, some of which are more politically contentious across the Floor of the House, where we think we can make better decisions here than are being made in our name by the European Union.

If such renegotiations could be achieved, we would clearly have reasserted, or asserted, the sovereignty of our Parliament. If, however, they can never be achieved, it is difficult to see how Parliament could still be sovereign. If we are saying that nothing can ever be changed once it has been agreed under the various procedures in Brussels—including the many measures that the British Government did not want or on which they were outvoted—we cannot say that we are sovereign any longer. We would then be in a relationship with the European Union that would fall short of our preserving parliamentary sovereignty.

Tonight we are discussing a narrower, but crucial, legal issue that has been well highlighted by my hon. Friend the Member for Stone (Mr Cash) and the European Scrutiny Committee, whose perception is first class in informing the debate. I do not need to repeat all those arguments. Suffice it to say that I support the important amendments proposed by my hon. Friend. As I understand it, we have a Government who say that they wish to do all they can to reassure people in this country that we are and intend to remain sovereign. They do not wish to pick a fight with Brussels, and we are not asking them to do so tonight. They say, however, that should a disagreement arise in future that cannot be resolved through the usual channels, it will be settled here. I am very much in favour of that; it seems to me to be a wholly admirable and sensible place to take the debate. If that is the intention, it proves that Parliament is still sovereign.

We are arguing only about the words used to carry out that intention. It is one of those rare magic moments when the Conservative party is completely united on its intentions. The Government’s intention to reassert parliamentary sovereignty warms the cockles of Conservative Members’ hearts. It is wonderful to know that in another debate we can have a referendum when anything important happens. There may be some arguments about what is important, but we welcome the spirit. Again, we are at one with our Government.

When eminent lawyers and colleagues who have studied this matter at much greater length than I have say to the House that they have studied it carefully, that they have what sound like moderate and sensible words that basically repeat the Government’s policy and that it would be helpful if those words were written into the legislation, my feeling is—unless the Minister has a very powerful speech coming up—what is wrong with that? If the Minister wants to reassert parliamentary sovereignty, why cannot we just say that in the Bill? It is exactly what my hon. Friend says —it does not seem difficult, so will the Minister please humour us on this occasion?

The fact remains that if we succeeded in amending the Bill in this way, we would not be truly sovereign in future unless we had the will and determination to shape our own destinies, should the need arise. I hope we can do it by agreement. Any sensible person wishes to do it by agreement, given how far we are in this thing with our European partners and what a mess they are in.

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[Mr Jones]

In some cases, possibly. However, it is clear that some members of the Conservative party feel more comfortable with Europe than many of those who are present this evening.

It is important to establish what clause 18 does and does not do. Members who have not read the report from the European Scrutiny Committee will find the details well worth examining. According to paragraph 81:

“Clause 18 is a reaffirmation of the role of a sovereign Parliament in a dualist state, nothing more, nothing less.”

The suggestion in the explanatory notes that—as has already been said—clause 18 will put an end to the notion that these nasty Europeans will do things to us is not justified.

[Kelvin Hopkins]

I did not intend to intervene, but my hon. Friend keeps talking about “nasty Europeans” as if this were an international issue. May I suggest to him that criticisms of the European Union, rather than of Europe, are strong among working people in Europe, including trade unionists? That is evidenced by the referendum defeats incurred by Europhiles who have tried to push through measures that are unacceptable.

[Mr Jones]

I entirely agree. I am another of those who are willing to criticise European institutions on grounds of waste and the untransparent way in which some things are done. The fact is, however, that—as has been made clear today—some Conservative Back Benchers, along with mainstream Conservative associations, believe that Europe is a thoroughly bad thing. I am sorry, but I do not share that view.

[Mr Jones]

I think that the duty of the elected House of Commons is not to try to hoodwink the public into believing—although the sovereignty and primacy of the House of Commons are self-evident—that the Bill will bolster our credentials, when that is clearly not the case.

Members who really want to change things, and to prevent the primacy of EU legislation, should try to amend the European Communities Act 1972. EU law is enacted by this Parliament, although anyone listening to some hon. Members today and some commentators outside might believe that it had no role in it whatsoever. The primacy of EU law over national law is clearly enshrined in the 1972 Act, which was passed by this Parliament. It can also be amended by this Parliament. I should be happy for those who obviously do not wish us to remain in Europe to table an amendment to that effect—that would be the proper thing for them to do—but clause 18 merely reiterates what is already there, as has already been pointed out by my hon. Friend the Member for Caerphilly.

As the European Scrutiny Committee in paragraph 82 of its report states,

“Clause 18 does not address the competing primacies of EU and national law.”

The idea that passing the clause would somehow enshrine, or protect, the sovereignty of the House is complete and utter nonsense. Paragraph 82 continues:

“The evidence we received makes plain that these two spheres of law coexist, usually peacefully, clashing occasionally. When they do clash, neither side gives way. The Court of Justice of the EU maintains that EU law has primacy over national law, including national constitutional law.”

That is clear from the ruling in the case of Thoburn v. Sunderland City Council.

I find it disturbing that some Members appear to believe that the courts have no role in the interpretation of law. As one of my hon. Friends observed earlier, the laws that we pass in relation to Europe are interpreted over time, and that is the role of the courts. It would be completely wrong for Parliament to interfere directly in the interpretation of a law once it had been passed. European law is no different from other laws in the sense that there are various possible interpretations of it. The Thoburn case made it clear that European law could not direct what the House of Commons could do in terms of making its own laws.

[Kelvin Hopkins]

Like my hon. Friend the Member for Rhondda (Chris Bryant), who is no longer in the Chamber, my hon. Friend has made a point about lawyers’ interpreting law and having scope to do so within statute. Parliament does not deliberately leave scope for lawyers to interpret the law—it tries to make its legislation fairly precise—but sometimes it is not precise enough, and at that point the lawyers intervene to interpret it. Parliament does not deliberately make laws open-ended so that lawyers can have a field day.

[Mr Jones]

No, but it has been suggested that the courts should have no role in the passing of laws, and I simply do not agree with that, although I accept what my hon. Friend has said.

There is a danger that amendment 41, and indeed new clause 1, will enable lawyers to interpret the meaning of “sovereignty”, and that the clearly defined roles and sovereignty of the House of Commons will be interpreted by judges, which would be wrong. Clause 18 has been tabled purely for political reasons, to placate people such as the hon. Members for Wellingborough (Mr Bone) and for Harwich and North Essex (Mr Jenkin), but I doubt that it will placate them in any way, and I believe that it poses a grave danger

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[Mr MacShane]

As the hon. Gentleman spent time in France, he may have read in the French papers reports of blockade after blockade of French ports by French fishermen, outraged that the British interpretation in Brussels of the common fisheries policies prevented them from doing what they wanted to do. This is a collective decision that we have taken, and I suggest that Government Members are honest: if they do not like the European Union, they will not alter it one little bit by putting new forms of words into clause 18.

Our representatives in Brussels and in all the Ministries that negotiate every aspect of our relationship with the EU will not be impressed by the proposals. If hon. Members do not like it, they should pull out—that is the honest position to take. There is no magic form of words that can get us out of our obligations under this or any other treaty. If they do not want to be in any of the treaty-based organisations, all of which are part of international law and which can, if necessary be prayed in aid by our judges, they should say so. There is a completely separate problem concerning the erosion of parliamentary sovereignty in relation to our courts. We are writing into our unwritten constitution judicial power that exists in other countries. The Germans have a constitutional court, and its rulings guide and control part of Germany’s relationship with the EU. We do not have such a court, but perhaps we should have. We all know full well the strength and power of the Supreme Court in the American constitution. We have never allowed that; we have wanted everything to happen here in Parliament and have not moved to a form of written constitution. We could put into one an obligation to have referendums on new treaties, as the Irish constitutional court has and the Danish constitution does. All those things are possible.

The Government could simply have said, “There will be a referendum on each new EU treaty—period.” That would have been very powerful and given the sovereign people the right to decide what should or should not happen. It would have severely limited the chances of this or any future Government negotiating changes to a treaty that we judged to be in our interests.

It is no accident that any reference to a referendum on enlargement is excluded from the Bill, because the Government want Turkey to join the EU—and so do I. However, nobody in the House can possibly imagine that the question of whether 85 million Muslim ladies and gentlemen from Anatolia should have free access into this country would not receive a resounding “no” from the British people in a referendum.

So we go back to the clause, again and again. Nothing in the amendment strengthens the Government’s hand or puts backbone into the UKRep spine—straight and sturdy though I am sure it is.

[Kelvin Hopkins]

rose—

[Mr MacShane]

I shall take one last intervention, and then I must stop.

[Kelvin Hopkins]

Time and again my right hon. Friend poses the alternative: accept what we have, or get out of the European Union. Yet now we are talking about reform and change—perhaps even withdrawing from the common fisheries policy. I shall leave that there.

I want to reinforce the point made by the hon. Member for North Antrim (Ian Paisley), who talked about officials. I suggest that the politicians, particularly the people at the Commission, pushed Britain to the brink. Recently, we came close to having a referendum that would certainly have produced a no vote. This signal that we are giving to the European Union will emphasise the point that Britain was pushed to the brink of a serious referendum, with a no vote being the certain outcome. This signal will make sure that they do not push us again.

[Mr MacShane]

There is this version of Britain contra mundum—the 26 member states all ganging up against us. We have allies and friends, and we win arguments. The European Union is seen around the world as a model for open trade. Lorries leave Portugal and arrive in Poland. A lorry cannot leave Mexico with its Corona beer and unload it in San Diego; it has to unload it on to protectionist lorries controlled by trade unions in the United States.

I put it gently to hon. Members that they should be careful before getting what they wish—the disaggregation of the European Union, with every country rejecting European Court of Justice decisions that they do not like. France believed that it was sovereign when it refused to accept a pound, or a kilo, of British beef, at the time when the whole world thought that the beef was contaminated. We could not export it to Australia, and Canada would not accept it. The Commonwealth would not have it. Hong Kong, our Crown colony, would not have it. But the European Union had to accept British beef because the European Court of Justice accepted our scientific arguments that the beef was fit for sale in the common European market.