European Union Bill

Michael Connarty Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr Jenkin]

Yes, and without wishing to digress, I point out that Lord Phillips, the current president of the Supreme Court, qualified article 9 of the Bill of Rights in a recent judgment by suggesting that the doctrine of implied repeal applies to it. The Supreme Court is questioning the Bill of Rights itself, and if we are not aware of how parliamentary sovereignty is now being questioned, we are not living in the real world.

I listened to the hon. Member for Caerphilly (Mr David) say that the clause merely reaffirmed the status quo, but the status quo is not a static situation. It is constantly fluid, and the rather lame attempt in the clause to address the situation is causing great concern.

[Michael Connarty (Linlithgow and East Falkirk) (Lab)]

I could not resist coming into the Chamber when I saw the hon. Gentleman’s name on the board. Could he explain to me how the status quo has changed since 1972, when Parliament basically took the decision to give primacy to EU law?

[Mr Jenkin]

What has changed is the nature of the legal order in the EU and the UK’s relationship with that legal order. If it had been explained to Parliament in 1971, when the European Communities Bill was progressing through the House, that in future a UK court would be able to strike down an Act of Parliament in the name of the European Union, there would never have been any possibility that we would have joined. The development of the European legal order, with the huge number and range of powers that have been passed over from the UK to the EU, means that I fail to see what competences the EU does not now possess that it could ever possibly need in order to become a fully fledged state. If the hon. Gentleman does not recognise that the situation is fluid, I think he is living on another planet. He had better listen to the rest of my speech.

We know where sovereignty lies in the British constitution—here in Parliament. Under a written constitution, it does not necessarily lie with the people, although the authority to exercise it might lie with the people. I would argue that the authority of Parliament’s sovereignty also rests with the people. Under the American constitution, sovereignty is dispersed among various institutions but ultimately rests with the judges. If we moved towards a written constitution, we would overturn the democratic constitutional settlement that we have enjoyed in this country and that has given us such flexibility and agility for 300 years. We would lock ourselves into a judicial system, which was fundamentally undemocratic because it would be ruled by judges, not the British people.

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[Mr Jenkin]

We sought alternative legal advice and were assured that, in all probability, the domestic British courts would uphold Parliament’s sovereignty and ability to suspend those legal enactments. But that is the point. We might have it now, but will we have it in the future?

[Michael Connarty]

Is the hon. Gentleman not willing to tell the full tale? The power given to the Commission under European Union law allowed it to stop France banning the import of our beef when it was cleared of infection. Is it not useful to have a common law that everyone agrees can be enforced in the other 26 countries? Without that, we might not be selling beef to Europe to this day.

[Mr Jenkin]

I fully accept that there is an argument and a balance of interests to be struck. The hon. Gentleman is arguing that it is always in our interests to accept a European Community legal order, but I am suggesting, quite reasonably, that it might not be. There might come a time when it is not in our interest to accept a European legal decision. Sadly, Governments tend to be driven by such a fear of confrontation with the EU that they will agree to anything in the long term. That is what has been happening, and this Government are thinking, “We have so many difficult fish to fry at the moment, we had better not confront them on this. This is the important thing we have to go for.” As a result, more and more power seeps away, and I put it to him that sooner or later that has to stop.

As Martin Howe QC said in evidence to the European Scrutiny Committee, the Bill might stop us on the escalator, but it does not stop the escalator going up. A constant stream of powers and functions—not new competences or changes in voting arrangements that will trigger referendums—is still travelling in one direction to the EU. It is in the textbooks: it is called the doctrine of the occupied field. Once a power has been gained by the EU, the EU can only delegate it back to member states; member states cannot get it back. It is a doctrine formulated, of course, by the European Court of Justice in order constantly to consolidate the federal character of the EU.

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[The Second Deputy Chairman of Ways and Means (Dawn Primarolo)]

Order. Before I call the next speaker, let me remind the Committee that the debate will end at 10 pm. I want to ensure that the Minister has sufficient time in which to answer all the questions that have been put to him, and that the mover of the amendment has time to reply. May I ask the remaining speakers to bear that in mind?

[Michael Connarty]

As you see, Ms Primarolo, I am surrounded by a large number of papers. I have asked many questions during my time as a member of the European Scrutiny Committee, and I hope that I shall not need to rehearse much of the evidence that we received. I hope that Members have taken the trouble to read that evidence rather than merely bringing their prejudices to the Chamber, warmed up for the day.

This is a joke Bill, and clause 18 is the biggest joke in it. It is a silly Bill. As we have already heard, it gives us no ability to change anything. My hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty) quoted a Member who said today that at least the clause did no harm. In fact, it does nothing positive at all.

I respect the hon. Member for Aldridge-Brownhills (Mr Shepherd), who has often spoken very emotionally about sovereignty and our Parliament’s ability to hold back the tide of European power. He emphasised that repeatedly during our debate on the Lisbon treaty, and he spoke very well tonight about many principles that we all hold dear. The joke lies in the suggestion that those principles—of self-government, the will of the people, and the things that we wish to do—have been filtered through clause 18 to give it some force, for it is clear that the clause makes no difference to what went before or what will come afterwards. Section 2(1) of the European Communities Act 1972 gave primacy to EU law by the will of this Parliament. That will continue, regardless of whether we pass the Bill—and in particular, regardless of clause 18.

The joke is also being played on the Eurosceptics on the Back Benches, and I think that they know it. The joke is being played on them by the Government, who are suggesting that the clause somehow constitutes a response to the promises that they gave to their constituents. They are saying, “This Conservative-led Government will give you back some kind of sovereignty.” As was pointed out by the hon. Member for Daventry (Chris Heaton-Harris), if we pass clause 18, these matters may be judged in court. Professor Tomkins said in his evidence that this was a dangerous clause because it put down a written constitutional principle, and any principle that is written down can then be challenged in court. The measure may therefore tempt Back Benchers to go to court when they feel they are not getting a hearing from Front Benchers.

If the Eurosceptics did not put their careers, and maybe their finances, before their principles, the true solution for them would be to leave the Conservative party, which is clearly not a Eurosceptic party—it is not going to challenge European sovereignty—and to join the UK Independence party instead. They could then try to build up UKIP into a force that people might vote for. It would be a party that wished to change things fundamentally by opposing and overturning the 1972 Act—perhaps by making laws in this place that challenge and ignore current EU law, as the hon. Member for Harwich and North Essex (Mr Jenkin) suggested—and thereby causing that to be judged in a court of law. Would a judge strike it down or not? Would the European Court of Justice try to strike it down by some other means?

That would come about only if UKIP Members were in the majority here in Parliament. It will not come about under this Government. The terrible thing is that this is a joke being played on the British people—on the people who voted for a Conservative party that cloaked itself in Euroscepticism without ever meaning to deliver any change in the relationship between the EU and this Parliament.

When the Lisbon treaty went through I said that it marked a tipping point, in that it was tipping power to Europe in a way that could not be changed unless we changed the 1972 Act, because we cannot get out of the deals that have been done. I was Chair of the European Scrutiny Committee at the time, and I think the rest of the Committee agreed with me.

I happen to like the progress that has been made, however, as I am a Europhile. I think that Europe is our saviour, rather than our enemy. I think that as part of Europe we will go forward as a stronger community and with a better culture than we would have if we broke away from Europe. I have no wish to see my world shrunk politically or culturally, or for the people’s rights, defended by Europe, to be taken away by our going back into partisan fights between right-wing capitalists and left-wing statists.

[Mr MacNeil]

Is the hon. Gentleman in favour of Europe—Brussels—being the sovereign Parliament, or London or Scotland? As a Scottish MP and a Scottish Member of the southern Parliament, where does he want the major power to reside—Edinburgh, London or Brussels?

[Michael Connarty]

When I observe the behaviour of the current Scottish National party Government in Scotland, I see my world—where I live—shrinking. I see it shrinking to the point of stupidity, wrapped up in trivia and false history. That has no attraction for me at all. The forces of nationalism are very dangerous, particularly in small countries.

[Several hon. Members]

rose—

[Michael Connarty]

I will make some progress.

[Several hon. Members]

rose—

[Michael Connarty]

I will make some progress.

[Mr MacNeil]

rose—

[The Second Deputy Chairman]

Order. Hon. Members are fully aware that only one Member should be on their feet at any one time, rather than everyone standing up and shouting together. Mr Connarty has the Floor. Perhaps Members will bear that in mind, and perhaps they will also bear in mind the clock, in order to ensure that the final Member to be called gets a chance to speak.

[Michael Connarty]

I certainly will bear that in mind. I am very aware of the clock, and I think—

[Mr MacNeil]

What’s the answer?

[Michael Connarty]

I think that the—

[Mr MacNeil]

What’s the answer?

[Michael Connarty]

The hon. Gentleman is showing why my world is shrinking. The bullying culture of nationalism is very fierce.

[Mr MacNeil]

rose—

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[The Second Deputy Chairman]

That is enough. Mr Connarty has the Floor. I ask the hon. Member for Na h-Eileanan an Iar (Mr MacNeil) to be quiet and to listen to the debate.

[Michael Connarty]

I am grateful, but I really do not need protection from the bullies on the Scottish nationalist Benches.

I believe that this joke is very serious and dangerous. The Front-Bench team can be very persuasive, and it has to convince people that this Bill, and in particular this clause, changes things—but it does not.

[Mr Jenkin]

Will the hon. Gentleman give way?

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[Michael Connarty]

I will at the appropriate time. I specifically chose the questions that I asked again and again in the evidence sessions: will clause 18 change the way in which the courts interpret their duty to review legislation in the light of EU law under the European Communities Act—and if not, what is the point of having it? I asked that of everyone who came to give evidence, and they all said that the clause would not change things; when pressed, they said that it would make no difference. In fact, it is a restatement of where we are, and I accept where we are. This is not about giving up sovereignty to the EU or to anyone else; it is about our deciding in this House that we would give the EU power to make laws within certain spheres and that the laws then passed would have primacy. But it is the choice of this Parliament, and if this Parliament chooses to take back that power by doing something that says, “We will challenge this,” we are able to do so.

The arrangement is not changed by this clause, but the clause is dangerous because it attempts to con the British people into thinking that it makes a difference. It is also dangerous because Professor Tomkins is right. He is a professor at the university of Glasgow, but he gives advice on constitutional affairs to the House of Lords and he has said that the clause invites a challenge and puts into a Bill something that people will use, perhaps for mischief or for some other reasons.

The clause does not change anything. We have these powers, and we could take them and use them; to put them into a Bill is to mislead people. That is shown in every piece of evidence now lying around me on this Bench: everyone we asked either said that in their written submission or answered the question by saying that it was true that the clause did not make a difference. I listened to the speech made by the hon. Member for Hertsmere (Mr Clappison), and he not only made some good points that agree with what I am saying, but cited some of the evidence that we received from the professors and others, who all said that the clause would make no difference.

It is not right to debate this matter without referring to the amendments, because that is the purpose of this section of the debate. The amendments in the name of the hon. Member for Stone (Mr Cash) and others just add to the confusion. They have drafted something that pretends to be different from the current situation but is not. Adding comments about common law and about preambles before the clause does not change the clause; it just says that under a law that those in this Parliament passed by their sovereign right we gave away certain primacy in law to the EU under section 2(1) of the 1972 Act. What we put before this, or what we put after it, does not make any difference.

Why does a Bill that says, “We will give the people of this country power to make choices, and power over the EU when it makes a proposal,” not contain the right to have a referendum on enlargement treaties? Such treaties are the only ones that will definitely come before this Parliament in the next period, and probably for a very long time after the Lisbon treaty. Why does this Bill not say that that power to have a referendum is going to be given to this Parliament? Why does the Bill not provide an automatic decision that such a referendum must be held? It is because the Government are playing a joke, not only on the people in this place but on all the people of the United Kingdom. If the Government were serious, that provision would be in the Bill. If they were serious, the Bill would contain something different from this clause. The amendments in the name of the hon. Member for Stone and others would not change that.

However, amendment 52, which was tabled by the Leader of the Opposition, is worth supporting because it proposes that the Government will report annually on how much of this Bill has been used to challenge anything coming from Europe. That would give everyone a chance to see whether the Bill is the joke that I say it is, or something of substance. I challenge the Government to accept the amendment. If they are serious and really think—I cannot imagine how deluded they would be to think this—that clause 18 makes a difference, I urge them to accept amendment 52, because we would then have a serious matter before us. We would have a Bill approved by the Government that would not just be a waste of time, because it would allow us, and the people of Britain, to judge annually whether it is a waste of time. That would make a major difference where nothing else would.

I am not angry about this, because I already believed that this is what would happen if we ever got a Conservative Government. I said that from the Government Benches as the Lisbon treaty went through, and I said to the person who is now Foreign Secretary and others that if the Conservatives ever got power they would not be the Eurosceptics that they pretended to be in opposition. This Bill and this clause show how true that is.

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[Mr Lidington]

That enforces the need for us to put on a statutory basis the position that European law has effect here solely because of parliamentary decision and not any other source of authority.

[Michael Connarty]

Clause 18 says that we gave away our primacy in terms of European law in section 2(1) of the 1972 Act. What is being done in the clause to take back from Europe the power that the people were promised would be taken back?

[Mr Lidington]

The hon. Gentleman is pre-empting the next section of my speech in which I want to make it clear what clause 18 does not do. I am not going to try to pretend to the Committee that it seeks to accomplish things that it does not do and is not intended to do.

The clause does not alter the existing relationship between European and UK domestic law, nor does it affect the primacy of EU law—a concept developed by the European Court of Justice well in advance of our membership of the European Community, and to which this Parliament gave effect in UK law as defined under section 2(4) of the European Communities Act 1972. My hon. Friend the Member for Harwich and North Essex was right to say, in quoting Martin Howe, that the clause would not stop the escalator, but that it would stop things getting any worse, as my hon. Friend would describe it, than the current position. It is worth saying that although Mr Howe made that comment about the escalator, he also said:

“In my view Clause 18 as presently drafted is valuable and is almost certainly sufficient to achieve its intended purpose of preventing judicial drift towards the erosion of the doctrine of Parliamentary sovereignty.”

As our judges have recognised to date, Parliament remains free to amend or repeal the 1972 Act, or indeed other Act of Parliament, at any time. But of course the political reality is that if we chose to repeal the 1972 Act or to disapply unilaterally a particular piece of European Union legislation, there would be a serious crisis in terms of this country’s relationship with the European Union. That might be a state of affairs that some hon. Members would wish to bring about and see as an opportunity, but that is not the Government’s aspiration.

Clause 18 will also not alter the rights and obligations assumed by the United Kingdom on becoming a member of the EU, and it will be in line with the practice of other member states such as Germany, whose federal constitutional court ruled in 1993, in the case of Brunner v. European Union, that Community law applies in Germany only because laws passed by the German Parliament say that it does. Similarly, in Denmark the supreme court held in its judgment of 6 April 1998 in the case of Carlsen v. Rasmussen that Community law applies in Denmark only by reason of, and to the extent permitted by, the Danish constitution. Therefore, although they have a different constitutional framework from that of our country, other member states have given effect to EU law through sovereign acts.

I want briefly to deal with two challenges that were made to the Government’s case: Professor Tomkins’s comments about partial legislation being worse than no legislation at all, and why we do not explicitly make this provision an amendment to the 1972 Act. On Professor Tomkins’s argument, we disagree with his conclusion. The Government are clear about the particular mischief that we are seeking to address, which is to put beyond speculation the fact that this country has a dualist system and that the rights and obligations under the EU treaty, in order to be justiciable before our courts, have to be incorporated in our system through an Act of Parliament. It has never been the Government’s intention in bringing forward this legislation to address the broader issues of potential challenge to parliamentary sovereignty over things such as human rights legislation or the impact of the devolution settlements, to which the European Scrutiny Committee drew attention in its reports.