European Union Bill

Malcolm Rifkind Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr Cash]

Not disappointed—absolutely appalled.

The sovereignty of Parliament is the most important principle of the United Kingdom constitution, and has been since 1688, as confirmed by constitutional authorities without question until very recently. Indeed, the greatest judge in recent times, the late Lord Bingham, who died only a few months ago, stated in the Jackson case in 2005:

“The bedrock of the British constitution is…the supremacy of the Crown in Parliament.”

I fear that the sovereignty of Parliament is in grave danger, however. There are judges in the Supreme Court whom Lord Bingham himself felt it necessary to name in black and white in chapter 10 of his book “The Rule of Law”, published shortly before his death. He publicly criticised their judgments and their attitude to parliamentary sovereignty. In the Jackson case, Lord Hope, who is now deputy president of the Supreme Court, said that

“parliamentary sovereignty is no longer…absolute”.

He went on to say that, “step by step”, it “is being qualified”. In his view, the rule of law, enforced by the courts, is the ultimate controlling factor on which our constitution is based. Lady Hale, who also remains on the Supreme Court, agreed with Lord Hope.

The fact that that case did not relate specifically to EU law does not alter the fact that the views expressed by Supreme Court judges can be as easily applied to cases involving EU law as to another judicial matter, contrary to the suggestions being put forward by the Minister in evidence earlier. It is not an answer to the question, as the Prime Minister has sought to suggest in a letter to me, for the Minister for Europe to state in his evidence to the European Scrutiny Committee that the Government are not seeking, and have never sought, to provide

“an all-embracing doctrine of Parliamentary sovereignty.”

The Supreme Court justices, who have a process of selection outside the Judicial Appointments Commission, have a significant critical mass of those with profoundly Eurocentric credentials. I mention this because the sovereignty of Parliament, which is a constitutional doctrine of the United Kingdom, is also under threat by virtue of the European Communities Act 1972. The construction placed on legislation emanating from that Act affects the daily lives of the electorate in almost every sphere of present-day activity. According to the Government themselves, such legislation affects at least 50% of all economic laws in the United Kingdom, including those that impose burdens on businesses small and large that, according to the best estimates, have cost £124 billion since 1998.

The threat comes not only from the common law radicalism of such judges but from the EU law itself, which claims constitutional supremacy over member states’ constitutions. We have also seen cases of terrorists appearing to get away with things and people not being deported when they should have been, as well as a whole range of other matters occurring under the European Human Rights Act, which, as I have said, is mirrored by the new charter of fundamental rights in the Lisbon treaty. We are witnessing a vast increase in the volume and impact of such legislation on the British people, and this is resulting in the anxieties I have described. Those anxieties could be allayed by my amendments, however, and it is time for us to turn the tide and make it clear exactly where we stand.

[Sir Malcolm Rifkind (Kensington) (Con)]

My hon. Friend is undoubtedly correct to say that the role of the courts has increased significantly, but is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.

[Mr Cash]

I am extremely grateful to my right hon. and learned Friend for that. I agree with the sentiment; the problem is the practice. The difficulty is not only the tsunami of laws: attitudes within the Supreme Court, particularly since the Constitutional Reform Act 2005, have so enhanced its independence that, in conjunction with the arguments it is beginning to present, very serious questions are raised. It was the same with the Bill of Rights of 1688—it was not an Act, but it is regarded as one of the central instruments of our constitution—when Parliament said that it was going to put its foot down and set down a marker that Parliament was sovereign. That is what I am saying in my amendments.

--- Later in debate ---

Suppose that we decided to disapply a provision on matters close to the Prime Minister, such as social and employment legislation, as he promised in 2005, or declined to bail out Portugal or Spain as part of the unlawful financial stability mechanism, or insisted on legislating within the United Kingdom for the City of London or decided to disapply investigative orders? On that and a vast range of other matters, if we thought it was in our national interests to do so, we could and should disapply EU law and require the judiciary to give effect to that law provided that it was clearly and expressly stated, whether or not it came from an international treaty or a European law. That includes repatriation, which has been specifically rejected by the Deputy Prime Minister. Furthermore, if we were to do that, we could not allow the judiciary flagrantly to contradict Acts of Parliament. That has never been accepted in our constitutional law, and the vagueness of clause 18 is, in the words of one of the distinguished witnesses, “an invitation to litigate”. The uncertainty and ambiguity that would arise as a result of the need for interpretation would invite that part of the judiciary that does not accept the traditional view of parliamentary sovereignty to prevail. That is why I am being so specific in the wording that I have used: it is a marker of the same kind as the Bill of Rights, and it says, “You do not touch the sovereignty of the United Kingdom Parliament.”

[Sir Malcolm Rifkind]

Is my hon. Friend not in danger of being so learned as to confuse himself about his own amendment? The sovereignty of Parliament was not created by an Act of Parliament, and it has never depended on an Act of Parliament. How can its restatement in an Act of Parliament given any real added value to its legitimacy?

[Mr Cash]

Precisely because the courts have moved further and further down that route, as I explained when quoting Lord Hope’s speech. The Supreme Court has been given independence under the Constitutional Reform Act 2005. I see a slight smile appearing on my right hon. and learned Friend’s face.

[Sir Malcolm Rifkind]

Not for that reason.

[Mr Cash]

Ah. He knows that he may have to answer that question during the debate. Judicial trends have recently moved along that route, and that movement is firmly entrenched, so it is time to call a halt to them, and that is what the amendments would achieve.