European Union Bill

Martin Horwood Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr Cash]

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

[Martin Horwood (Cheltenham) (LD)]

Is the hon. Gentleman now in favour of establishing a common European language?

[Mr Cash]

As long as it subscribed to the classical arrangements that were provided for when we all actually spoke Latin properly, the answer would be yes.

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[Mr Cash]

My hon. Friend makes a very important point, which I think all Members will want to take into account. As a lawyer myself—there are many other lawyers in the Chamber—I know that there always exists within the framework of the judicial or court system the adversarial nature of arguments based on words. One reason I came into this House after a fairly lengthy career in the law was that having had so much exposure to parliamentary legislation and its impact on people, I was conscious of the fact that however clever or adroit a lawyer might be in expressing his opinion in court or in his practice, the impact of law on the people who receive it—the voters—was quite a different matter. The common sense mentioned by my hon. Friend the Member for New Forest East (Dr Lewis) provides a salutary reminder of the necessity to remember that we in this House are Members of Parliament. We are legislators; we are not lawyers. We are seeking to apply principles that will enable this country’s people to be better governed.

Unfortunately, much of our legislation emanates from the European Union, for example, on issues such as food labelling. My hon. Friend the Member for South Norfolk (Mr Bacon) has just proposed a private Member’s Bill to deal with that issue, but his Bill has no chance of becoming law unless we disapply the European element and pass it in this House. That is the problem, and it is, in part, what the supremacy of Parliament debate is all about.

[Martin Horwood]

I would like to question the hon. Gentleman on one of these principles. He is presenting this as a competition between European and British law and between judges and Parliament, yet he himself has said that these debates are happening and this authority has been conferred on British courts because of the European Communities Act 1972, which, unless I am very much mistaken, was an Act of this British Parliament. That rather reinforces the principle of supremacy.

[Mr Cash]

If I may say so, that is not only true but precisely what I am seeking to deal with in new clause 1, which I tabled because the courts have been allowed this unwarranted intrusion into the legislative process by judicial activism. Much of the European Communities Act 1972 invokes regulations, which come into effect in a different way from directives. In the new clause, the interpretation and the construction put on legislation by the judiciary should not under section 3 of that Act extend to the nature or legal effect of parliamentary sovereignty. What I am doing is exactly what the hon. Member for Cheltenham (Martin Horwood) highlighted—dealing with the mischief, as I see it, created for that ultimate source of authority, which lies in this House as a sovereign Parliament, to be able to make and unmake laws as it wishes.

That does not necessarily mean that we would automatically take extreme positions. Some academic lawyers—very distinguished they are, too—have gone to extraordinary extremes in trying to demonstrate, in print, the necessity for their case, and have not done themselves a service in so doing. It is at a much more mundane level that the people of this country are unreasonably affected by some of the legislation that needs to be dealt with in Parliament, and which can be dealt with only by the sovereignty of Parliament in its traditional sense.

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Removing sovereignty from Parliament would pass that sovereignty to some other body, whether it be the European Union, the Supreme Court or any other organisation. Sovereignty is about giving ultimate power to the people’s democratic representatives in Parliament, not to the courts and not to international bodies such as the European Union. It is that democracy which gives voters freedom to choose who governs them and how, and for which people have fought and died.

[Martin Horwood]

The hon. Gentleman is being extremely generous with his time. According to a report from his own European Scrutiny Committee,

“the term ‘Parliamentary sovereignty’ bears a number of meanings which can get confused.”

Does not the risk posed by his amendment lie in the fact that it is so simple that it allows for wide and different interpretations that might be exploited by the very courts about which he seems to be so worried?

[Mr Cash]

I should be more than happy to show the hon. Gentleman a book that is entirely devoted to the issue of the sovereignty of Parliament. The point is that there is no need to define parliamentary sovereignty. The Constitutional Reform Act 2005, which gave greater independence to the judiciary and the whole of which ultimately turns on the rule of law, does not contain any definition of the rule of law. Certain fundamental principles, and methods whereby we are governed, do not require definition for that purpose. They are applied, in the case of both sovereignty and the rule of law. There is a natural constructive tension between the two, but it is our job to protect the element that involves the sovereignty of Parliament.

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[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.

[Martin Horwood]

I realise I am on dangerous ground in quoting bits of the hon. Gentleman’s report back to him, but in paragraph 43, the European Scrutiny Committee concluded:

“Overall, the majority of witnesses thought that if an Act of Parliament were to derogate from an EU Regulation or Directive, for example, and in so doing expressly and unequivocally disapply the ECA, the courts would be likely to follow the derogating Act of Parliament.”

The majority of witnesses thought that clause 18 was at worst unnecessary. Only one thought that it was dangerous, so the principle that the hon. Gentleman has espoused is well established and perfectly defensible in British law.

[Mr Cash]

That would be the case if it were accepted by the judges in the Supreme Court. It is precisely because we know that they are not inclined to take that view that the amendments are necessary. We are extremely grateful for the evidence that we have received from distinguished witnesses, but the problem is not what they have said, because they aided us in arriving at conclusions in the light of our need to defend parliamentary sovereignty. The problem does not lie in Parliament or with the witnesses; it lies in the assertions of a circle of certain judges and lawyers.

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[Mr David]

The hon. Gentleman might well have a point. This is something that has to be looked at carefully. I am mindful of the fact that although we are in Committee today, this is not the end of the process. I am sure that we will return to the issue on Report.

It appears that the Government hold the view that parliamentary supremacy is a construct of common law. However, if that is the case, it could be argued that parliamentary sovereignty could be qualified by the courts and that this would not be opposed by the Government. Professor Tomkins, who has been referred to already, is the distinguished chair of public law at the university of Glasgow. He submitted extremely important written evidence before the European Scrutiny Committee and gave extremely significant oral evidence. Let me be clear: Professor Tomkins is not anti-European. He specifically said in his written evidence that he considered that

“it is in the United Kingdom’s clear interest to remain a committed member of the EU.”

However, he expressed his concerns to the European Scrutiny Committee about the supremacy of Parliament and common law as follows. Referring to the Jackson case, Professor Tomkins said:

“one of the things that that case most sharply and, to my mind, alarmingly indicates is that even our highest court, as was, is not sure what to do with parliamentary sovereignty. It isn’t sure what the legal basis for parliamentary sovereignty is. It isn’t sure how much parliamentary sovereignty is under challenge. It isn’t sure how much parliamentary sovereignty continues to represent the group ‘norm’ or the ‘bedrock’ or the ‘keystone’ of the constitution—all of those words are used.

The reason why the Jackson and the Attorney-General case is so long…is that so many of the judges who decided that case…wanted to use the case as a vehicle for the expression of a bewildering variety of different views about the past, present and future state of parliamentary sovereignty. The case, I think, is authority for not much, but it is authority for the proposition that we have the right to be concerned about what is going to happen to parliamentary sovereignty in the hands of the courts.”

That is a powerful statement, and all of us who believe in the importance and the supremacy of Parliament should take note.

As I have tried to argue, the Opposition believe that clause 18 is otiose and unnecessary. It is purely declaratory and merely reaffirms what is widely understood to be the legal and constitutional position regarding the application of EU law in the United Kingdom.

[Martin Horwood]

I am rather confused about the Labour Front-Bench position. Having apparently endorsed the fear that there is judicial mission creep, the hon. Gentleman now seems to be rejecting a clause that seeks to resolve that issue. What exactly is the Labour party suggesting? Would it propose an alternative clause, or would it prefer that the Bill did not exist? What is the Labour position?

[Mr David]

I am just coming to the amendment that we are proposing, which would allow an opportunity for the issues raised by the hon. Member for Stone and others to be considered in a rational and thoughtful way. In the spirit of generosity, we accept that others may have genuine doubts. That is why we tabled amendment 52, which would ensure that the Secretary of State made an annual report—[Interruption.] The Deputy Leader of the House has read our amendment. Well done. Amendment 52 would ensure that the Secretary of State made an annual report to indicate whether parliamentary sovereignty had been challenged or questioned in the British courts or the European Court of Justice. Our amendment spells out in clear terms the duality principle, whereby the law of the European Union is totally dependent on the European Communities Act 1972. We see such a report being presented to Parliament and being voted on annually.

[Martin Horwood]

With all due respect to the hon. Gentleman, I shall have to restate my question. I was not asking whether he was proposing a report to find out the Secretary of State’s position; I was asking him what the Labour party’s position would be. What would he want in that report? What would he expect?

[Mr David]

We would want an accurate reflection of what has been happening in the British courts and the European Court of Justice. I want to see the objective evidence presented to us. It is interesting that we have not heard from the Government in this debate as to whether there is more justification than what they have so far presented to us. I suspect that there is none, but there are many Conservative Back Benchers who believe that there is ample evidence. What I am saying is that there is certainly an indication that there are more things to be considered.

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[Mr David]

I am not sure what the “mission creep” that the hon. Gentleman is talking about really is. We have been talking about the sovereignty of the British Parliament, and we are pretty clear that the European Union exercises its powers through European law in this country by virtue of an Act of this Parliament. That is undeniable, and it is an important principle on which I hope every Member of the House would agree.

I fully appreciate that many Members of the House have sincerely held concerns. Although we would argue that some of those concerns are exaggerated, we should nevertheless have an annual review—an annual report, an annual debate and, yes, an annual vote. If it can be shown that the sovereignty of Parliament is being questioned or challenged in the courts, either at home or abroad, we will have a strong basis on which to act.

[Martin Horwood]

I am hoping that my persistence will pay off. The hon. Gentleman appears to be saying that on the one hand, clause 18 is otiose and, according to all the eminent sources to whom he has referred, that there is no particular threat to parliamentary sovereignty. However, he also seems to be conceding that there is some generalised concern, because he is calling for an annual debate and an annual report on the subject. Let me once again ask: what would the Labour party do? Would it also suggest such a clause? Is the hon. Gentleman suggesting that we should restate parliamentary sovereignty in statute or not?

[Mr David]

The hon. Gentleman is making hard work of this—or perhaps he is not listening as carefully as he might. Our starting point is that we would not have this Bill in the first place. We would be talking about the issues that really matter to the people of this country and the people of Europe. Nevertheless, we recognise that we are in the here and now. The Government have introduced the Bill, dedicating much parliamentary time to it, and, as a good Opposition, we are determined to make the best of it. We are simply saying that, on the face of it, there is no case for clause 18. However, we have respect for the concerns that have been expressed, both here and elsewhere. We are saying that we should be careful to take into account all the points that are expressed, clearly and effectively. However, let us not dwell on them on a one-off basis and make a definitive decision here and now; let us instead have an ongoing process, with an annual review and an annual report. Let us ensure that the Government are fully accountable to the House of Commons. That is a straightforward position.

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[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.

[Martin Horwood]

The right hon. Gentleman makes an eloquent case. He and I might disagree on whether we want to withdraw from the common fisheries policy, but would he have seen any constitutional bar to that taking place had a Conservative majority Government taken office? Surely, if this was in the manifesto, he must have believed that it was possible to achieve it under the present constitutional arrangements.

[Mr Redwood]

Withdrawal from the common fisheries policy was not in the manifesto, although it might have been in the personal manifestos of some of my right hon. and hon. Friends. I gave it as an example because I believe it has a great deal of cross-party support. Most people think the common fisheries policy is extremely badly run and is not in the interests of the fish or the fishermen. Casting all those dead fish back into the sea is not my idea of conservation and it does not bring cheap fish to the fish market either, so it does not seem to be good news.

Successive Governments have always said that they quite agree with those of us who make such points, but they have never managed to negotiate a better deal. Would it not be wonderful if the Government said, “If we cannot negotiate a better deal next year, we will use British parliamentary sovereignty to pull out of the CFP”? I would like to do that and I do not think it would be tantamount to leaving the European Union. It would be pretty cross, but it would probably do a deal with us because it would be more embarrassing to have a sovereign Parliament taking unilateral legislative action than to do a deal. I hope the EU would do a deal; it would be sensible for it to do so.

If we are not prepared at some point to assert our power, we lose our sovereignty. Just as the Crown lost its sovereignty, became the Crown in Parliament and eventually lost practically all its real powers, so this Parliament is losing its powers. If it goes on losing them, without sensible provision being made of the kind proposed by my hon. Friend the Member for Stone and without at some point standing up for a better deal for Britain, this Parliament, too, will no longer be sovereign.