European Union Bill

Lindsay Hoyle Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr William Cash (Stone) (Con)]

I beg to move amendment 41, page 11, line 25, at end insert—

‘(1) The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed.’.

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 10, page 11, line 30, at end insert ‘and not by virtue of a common law principle.’.

Amendment 52, page 11, line 30, at end add—

‘(2) The Secretary of State shall prepare an annual report on the extent to which in the previous 12 months the provisions of subsection (1) have been challenged or questioned in the courts, including the European Court of Justice, identifying any challenge to the declaration contained in that subsection that the status of EU law is dependent on the continuing statutory basis provided by the European Communities Act 1972.

(3) The report made under subsection (2) shall be laid before Parliament for its approval.’.

Clause 18 stand part.

New clause 1—Parliamentary sovereignty—

‘Section 3(1) of the European Communities Act 1972 shall not extend to the construction or interpretation by the courts of the United Kingdom as to the nature or legal effect of parliamentary sovereignty and section 3 shall be amended accordingly.’.

New clause 4—Saving for existing law—

‘Nothing in Part 3 adversely affects or shall be construed as affecting the existing constitutional law of the sovereignty of Parliament in relation to EU law.’.

[Mr Cash]

The group relates specifically to clause 18, and I shall explain a little of the amendments’ purpose.

Amendment 41 would insert at the beginning of the clause, which covers the status of EU law, the simple words:

“The sovereignty of the United Kingdom Parliament is hereby reaffirmed.”

Amendment 10 would add to the end of the clause the simple phrase,

“and not by virtue of a common law principle”.

The effect of that would be to prevent the courts from applying a common law principle, which has become entrenched in certain thinking in influential academic and legal circles, and in the Supreme Court. The explanatory notes suggest that it has also become entrenched in the Government’s thinking.

I understand that the explanatory notes may be in the course of being corrected, as the European Scrutiny Committee and one of its main witnesses suggested. However, precisely what effect that will have remains to be seen. Perhaps we can debate that this afternoon. After all, the explanatory notes may have been prepared to aid interpretation of the statute—statute law is open to interpretation by the courts—but will the removal of the relevant words necessarily have the effect of preventing those most distinguished and eminent Supreme Court judges from departing from principles and doctrines to which they have apparently become wedded?

The two new clauses are directly relevant to clause 18 to ensure parliamentary sovereignty in view of the continuing trend towards judicial interpretation along the lines that I have already expressed. It is a matter of grave concern to many of us—far more than may turn up in the Lobbies today—that the courts, on a range of matters, have accumulated greater and greater influence, and, indeed, action, in relation to their judgments on Acts of Parliament. I refer not merely to interpretation or construction of the words but the underlying judicial activism, sometimes of a quasi-political nature. That has caused a great deal of concern, which has arisen particularly in the case of the Human Rights Act 1998. Although we are not discussing that today, there is an analogy because the charter of fundamental rights, which mirrors the Human Rights Act, is part and parcel of the arrangements under the Lisbon treaty. In that area of law, if there were any inconsistency between legislation—many centuries old and based on well established democratic principles—passed in this Westminster Parliament, would the judiciary presume to make judgments about the nature or legal effects of parliamentary sovereignty?

--- Later in debate ---

[Geraint Davies (Swansea West) (Lab/Co-op)]

How does the hon. Gentleman reconcile his call for sovereignty of the House with the fact that, on 1 January, we saw established the European Securities and Markets Authority in Paris, the European Banking Authority in London, the European Insurance and Occupational Pensions Authority in Frankfurt and the European Systemic Risk Board, all of which trump national organisations such as the Financial Services Authority and the Bank of England? Is this not an unreal debate? This is happening now and is constraining our action, and none of these amendments will make any difference to the fact of those constraints.

[The Chairman]

Order. It would help if the hon. Gentleman could try to shorten his interventions.

--- Later in debate ---

[Mr MacShane]

rose—

[The Chairman]

Order. We cannot have two hon. Members on their feet at the same time.

[Mr Cash]

I was talking about the crow that was quacking on the fence.

--- Later in debate ---

[Mr Jones]

I am sure, however, that some Conservative Members would have such a referendum if they could—although I would not like to challenge some of them to do that. [Interruption.] No, I do not want to go down that route.

[The Temporary Chair (Mr Roger Gale)]

Order. I hold to the strong belief that if I wait long enough we shall return to clause 18.

[Mr Jones]

My mind has been set off with thoughts of my right hon. Friend the Member for Rotherham (Mr MacShane) doing various things with dead parrots, but I shall try to resist any temptation to go down that route.

The European Scrutiny Committee was clear about clause 18:

“Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated. We are gravely concerned that for political reasons it has been portrayed by the Government as a sovereignty clause in correspondence and also in the Explanatory Notes”.

I would be concerned if, because of what has been said tonight, the explanatory notes are amended during the Bill’s passage, because that might mean we do not have proper explanatory notes, and it might have an impact on our being able to scrutinise the Bill thoroughly.

The Committee also states that the Foreign Secretary was so confident of this clause that he would not appear before the Committee. I think that is wrong. To ensure that the Executive are properly scrutinised, Cabinet Ministers should appear before any Select Committee or inquiry that invites them to do so, and I cannot understand why he chose not to do so on this occasion.