English Votes for English Laws

Debate between Wayne David and William Cash

Wednesday 15th July 2015 Commons Chamber

[Sir William Cash]

May I speak quite bluntly? As it happens, I have great affection for Members of the Scottish National party. They know what they are fighting for and what they want, and it is called independence. Let us not be fooled, however. The hon. Gentleman has put his finger on it. The plain fact is that SNP Members do not like being outvoted in the United Kingdom Parliament. That is what this boils down to.

The hon. Gentleman has touched on what “devolution” actually means. He may or may not agree with this, but the greatest constitutional experts, Bradley and Ewing, define it as follows:

“Devolution is not a term of art in constitutional law. Unlike federalism,”—

on which the hon. Member for Perth and North Perthshire constantly harps—

“the nature of devolution within the United Kingdom depends not on a written constitution, but on the legislation authorising the devolution and on the practice that develops on the use of the new structure for decision-making.”

They go on to say that

“devolution has been defined as involving ‘the delegation of central government powers without the relinquishment of sovereignty’”.

That is what the greatest experts say. If SNP Members go off and speak to their constitutional law experts in Scotland, they will find that they do not disagree. Mr Ewing comes from Scotland anyway.

[Wayne David]

The hon. Gentleman’s quote is constitutionally and historically correct, but does he agree that a central tenet of established constitutional practice is that all Members of Parliament should be equal? These proposals will drive a coach and horses through that by creating inequality among Members.

[Sir William Cash]

I shall not cite the obvious George Orwell quote that comes to mind about all animals being equal, because that might be thought to be rather disrespectful. However, the bottom line is that the hon. Gentleman is just not right. When we create different functions, voters expect the Member of Parliament who represents them to be accountable for those functions. This is not a great mystery or great science. It is a simple question of where the lines are drawn. They were drawn by the United Kingdom Parliament and that is where the matter stands.

I want to remind Members about the Scotland Act 1998, although not many who were in Parliament at the time are still here—

European Union (Referendum) Bill

Debate between Wayne David and William Cash

Friday 5th July 2013 Commons Chamber

[Mr Cash]

Furthermore, with respect to our trade deficit, as I have said on a number of occasions, in 2012, according to the Office for National Statistics, we had a trade deficit of £70 billion with the other 27 member states. To give the point some substance, Germany, on the other hand—no wonder there are two Europes, which are increasingly becoming German-oriented—had a trade surplus with the other 27 member states in 2011 that has now gone up to £72 billion.

It is not really a European Union any more. It is so heavily dominated, wilfully or otherwise, by the circumstances that have created that imbalance, and that of course has its effect on the qualified majority voting. That is why we have to have a referendum, and we need to have it sooner rather than later, because the fundamental renegotiation itself is dependent on the fact that the circumstances have already arisen, and as I said just now, not necessarily with a new treaty.

[Wayne David]

So that we can be clear about the hon. Gentleman’s position, does he favour the United Kingdom having a relationship with the European Union similar to that of Norway and Switzerland, or does he think we should be entirely separate and have no relationship with the single market?

[Mr Cash]

I have made my position entirely clear on a number of occasions. We need to have something in the nature of a European Free Trade Association arrangement. We need an association of nation states. I am off to Lithuania the day after tomorrow to discuss these matters with the other 27 chairmen. The main topic of conversation now is democratic legitimacy, and it is not just in this country, it is not just in this Chamber, it is not just in the opinion polls, it is not just in the Eurobarometer, which has shown that trust in Europe has completely evaporated all over Europe. Wake up, I say. This is the fact, and it is happening. That is why we need to have a renegotiation. This is about trust. It is about allowing people to have government of a kind that responds to their own wishes, as expressed in general elections. That is why we cannot have two Governments and two Parliaments covering the same subject matter. It is complete, incoherent, absurd nonsense.

Europe

Debate between Wayne David and William Cash

Wednesday 30th January 2013 Commons Chamber

[Mr Cash]

I am grateful for that intervention for a very good reason. One of the reasons why I believe it is right for the Prime Minister to insist on the “in or out” question is that now, after all the agonising over all these years—including the Maastricht rebellion, for example, which I was able to participate in and lead at the time—all these things have culminated in this referendum. We have fought for a referendum. Precisely because the question is “in or out?”, it raises the question of the European Communities Act 1972 and whether the British people, having voted in the ballot box, should be expected to receive legislation that comes automatically into law when they might not in fact agree with it. That is the problem: that is why I believe we must have the right question, but it must also be at the right time. As far as I am concerned, if that democratic principle is not upheld, I will vote to come out, because the democratic principle is the fundamental issue for the British people, many of whom fought and died for this country.

I heard my hon. Friend the Member for Croydon South (Richard Ottaway) refer to the fact that he was born in May 1945. I was born on 10 May 1940. That was the day on which Churchill became Prime Minister, and it was over the question of whether or not Britain would be able to govern itself—and much more besides. I follow the line Churchill took about being “associated but not absorbed” with Europe. That is the fundamental question.

In addition, on the economic front, let me make this point. My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I wrote a pamphlet about a positive way forward for the single market. We believe that there is a positive way forward for Europe, but that what is happening at the moment is that Europe is creating instability by this concentration on a compression chamber when there are all these diverse countries. As my hon. Friend the Member for Croydon South said, “one size fits all” does not work. We must have an association of nation states. I appreciate that that challenges the centralisation that has gone on for so long in Europe, and I appreciate that it challenges the democratic deficit. I appreciate, too, if I may say so, that this would increase trade, increase opportunities and help to liberalise the rest of the world in the global marketplace. All these things have to be examined, as we move forward in the debate that has now started.

Given the dysfunctionality of the European Union, the determination to repudiate the idea that we should have a referendum is astonishing. The French had two referendums—I took part in both of them in France—and we did incredibly well in Denmark, too, where there were several referendums. There was a referendum in Ireland and in Holland. Who on earth are these people to turn round to us in this country and say, “We can have referendums, but you can’t”? It is beyond belief.

[Wayne David]

Just so we can be absolutely clear, when would the hon. Gentleman like to see the referendum in this country being held?

[Mr Cash]

I would like to see it before the European elections. I believe that that is where the focus on the European question will be at its best. Then we can expose the position of the Liberal Democrats, UKIP and the Labour Opposition at the same time. The reality is that the British people deserve to have that vote.

Multiannual Financial Framework

Debate between Wayne David and William Cash

Wednesday 31st October 2012 Commons Chamber

[Mr Cash]

Absolutely; that is a very good point indeed.

I would like to dig a little deeper into what this money is supposed to be used for. It is all set out in the papers laid before the House for the purposes of this debate. They talk about turning the EU into a “smart”—whatever that means—“sustainable and inclusive economy” delivering

“high levels of employment productivity and social cohesion.”

How on earth are they going to achieve that given the measures they think will produce growth? Almost every single aspect of what they want to deliver is based on increasing grants and subsidies, but not on asking where the money is coming from.

The money comes from our constituents. It comes from the taxpayer. It does not grow on trees. That is what they do not understand. Therefore, the entire strategy on which this multiannual financial framework is based is nonsense. It is an Alice in Wonderland fantasy, as I have repeatedly said when I have had the opportunity to meet the other 27 Chairmen of the national scrutiny committees. I have noticed that there is increasing awareness, too. The hon. Member for Luton North (Kelvin Hopkins) was with me only a few weeks ago, and he noticed the degree of response I was getting from the other member states’ national chairmen. They understood that they were in deep trouble.

The money does not grow on trees in Spain; that is why there are demands for independence from Catalonia. The money does not grow on trees in France or Germany either. The fact is that it has to be found.

[Wayne David]

The hon. Gentleman and I have significant differences about what this country’s approach to the EU should be, but does he agree that the important thing at this moment in time, with every EU member state having to make public expenditure cuts, is that the EU itself should make cuts? That message should go out from both sides of this House.

[Mr Cash]

The hon. Gentleman is right. I do not think this is just a cynical move, even though there is an element of that. As I find when I go to meetings with those in the presidency, there is a recognition: they know they cannot go on spending money that is not there. That is the truth. That is all this argument is really about. It is about the big landscape of whether, like Mr Micawber, we can just hope something will turn up. It will not; it has to be built through real growth policies.

Unfortunately, the report the European Commission produced only a few months ago shows it has not got a clue how to generate that growth. I was also deeply disturbed to see that the amazing report by the European Parliament calling for all these increases was welcomed by the vice-president of the European Commission, Maroš Šefcovic. He said the MFF was “an investment budget” for delivering growth in “the entire EU.” He condemns himself outright simply by endorsing the 150 pages of unadulterated rubbish that came out of the European Parliament in its interim report.

European Union Bill

Debate between Wayne David and William Cash

Monday 11th July 2011 Commons Chamber

[Mr David]

I find it amusing and surprising that the Minister is dismissive of senior Members of the House of Lords such as Lord Brittan, who not only had reservations and disagreed with parts of the Bill, but said that there was nothing in the Bill at all with which he could agree.

[Mr Cash]

He has got a pension too.

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[Mr David]

That is an important qualification, which I will come on to address specifically. It is important at this stage to make the general case that this is a central part of our unwritten constitution.

[Mr Cash]

Does the hon. Gentleman accept that the question of fettering a future Parliament is secondary these days, unfortunately, to the fact that the Supreme Court could, as the European Scrutiny Committee examined in its evidence and report on this Bill, assert that it has ultimate authority in certain circumstances? That is the mischief that we must ensure does not happen under any circumstances. We will come on to debate clause 18 and the Government’s proposals, which open that door in an alarming fashion.

[Mr David]

Like the Minister, I do not want to stray into that debate. One thing that has been clear from this whole debate, including on Second and Third Reading, is the real threat to this institution comes from judicial activism. That threat does not come so much from the European Union as from our own judiciary. We must be mindful of that.

Another expert witness who gave evidence to the hon. Gentleman’s Committee was Vernon Bogdanor, a research professor at King’s college London and a former tutor of the Prime Minister. He said that

“the purpose of the bill must be to prevent a future government from supporting such an amendment or transfer without a referendum. The bill seeks, in other words, to bind a future government. That seems to me inconsistent with the declaratory proposition that Parliament is sovereign.”

That is an extremely powerful statement. We must consider the full impact of this legislation.

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[Mr David]

No, it would not pass to the Government, because we are talking about Parliament itself deciding. In our electoral system, it is the Executive who are accountable to Parliament. We are talking about parliamentary sovereignty.

[Mr Cash]

Will the hon. Gentleman please reflect on what he just said? Is he trying to maintain the fiction that it is Parliament that makes decisions, when most decisions are in fact taken at the direction of the Prime Minister and the Government through the Whips?

[Mr David]

I very much hope that in this Parliament that will not be the case. I have taken heart from the rebellious comments and actions of the hon. Gentleman. I very much hope that Parliament will assert itself through the course of this Parliament and that his concerns will prove to be mistaken.

I hope that most Members of this House would uphold the time-honoured doctrine, despite the qualifications that have been expressed, of one Parliament being unable to bind its successor. I hope that Members do not question that. We should never seek to dictate in one Parliament what should happen in the next. I concede that, strictly speaking, the European Union Bill does not bind future Parliaments because, as has been said, those future Parliaments could modify the legislation. Nevertheless, at the very least, the Bill questions that principle and strongly goes against its spirit. I say that because the heart of the Bill will effectively come into operation during the next Parliament.

In the other place, Lord Howell said from the Government Front Bench that the Bill will be “operative” in this Parliament. He cited the Government’s commitment to bring forward an Act of Parliament on the European stability mechanism, the so-called bail-out mechanism, and its inclusion in the treaty. The Minister has just said that an Act of Parliament will be brought forward if Croatia accedes to the European Union. The Government have said consistently that they will not agree to any transfer of sovereignty to Brussels during this Parliament. That is an important qualification. There will therefore be no need to hold a referendum. Of course, we may see a significant transfer if the Government decide to opt in to the European Court of Justice opt-in provisions. The Government are illogically against holding a referendum if they decide to opt in. That reinforces the point that the main intention behind the Bill is to influence future Governments and Parliaments. What happens during this Parliament under the Bill will be relatively small beer. We are talking about a piece of legislation that will have a direct influence on the Governments and Parliaments of the future, after the next election. That is the fundamental point. Despite the qualifications that have to be expressed for the argument to hold up, that is an important and telling point.

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[Mr Cash]

The little matter that the hon. Gentleman happened conveniently to leave out of that remark was the voice of the British people, was it not?

[Mr David]

It is important that we recognise that the British people have a voice, which is why we have been clear that it is important that referendums are held on major constitutional issues and the issue of a single currency. It is important that the British people are engaged in the debate about Europe in a way that they have not been for a good time. However, the way to do that is through constructive and rational debate. There is nothing wrong with having referendums on big, important issues, but we are firmly against having referendums on paper clips and minutiae.

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[Mr Cash]

I have no problem in acknowledging someone’s powerful views on constitutional questions. For example, I remember during the Maastricht proceedings that the noble Lord was quite clear on the question of whether the Maastricht treaty took us further and deeper into the integration process. He argued that it did not make any difference in principle because the 1972 Act already conceded that there had been a change in the constitutional position and, to all intents and purposes, there was, thus, no real change in the substance of the issue. That is not to accuse anybody; it is merely to recognise that they have a constitutional viewpoint and to recognise how they really regard the encroachments on our sovereignty, which were evident in the Jackson case, in the evidence that the Committee received from many distinguished witnesses and in the fact that the Government’s previous explanatory notes led us into a situation where we criticised the Government and they withdrew the offensive words, precisely for the reasons that I am presenting.

The reality is that we have caught out the Government on their wording and they have now acquiesced in other wording which opens the door to statutory interpretation by the Supreme Court. That is the kernel of this matter. Whether or not my right hon. Friend the Minister really likes the way in which I have expressed this is neither here nor there. The real question, on which I challenge him, is this: does he deny that the wording in the Government’s amendment, in response to the Lords amendment, imports the opportunity for the Supreme Court to apply statutory interpretation and, thereby, to create a situation that could be best avoided, as set out by Lord Howe of Aberavon, our European Scrutiny Committee and the evidence that we received from so many people, by having no clause at all, rather than the current clause 18?

The Minister knows that I feel very strongly about the fact that we promised in our manifesto a sovereignty Act, and that was the consequence of discussions at the very highest level with the leadership. We knew that that was put into the manifesto as a direct response to the promises that were made. The bottom line is that we were given a second-rate provision that is unnecessary and that has since been criticised by the European Scrutiny Committee and eminent constitutional experts, including Lord Howe of Aberavon, and what the Government are introducing merely acquiesces to a degree in what Lord Mackay of Clashfern has proposed. That simply is not good enough and the Government should withdraw the proposed clause while they have the opportunity to do so. It is for those reasons that I shall be voting against it.

[Mr David]

This long debate, which has taken place over a number of months, has almost come full circle. I recall that we began our deliberations with the hon. Member for Stone (Mr Cash) and others saying that what had been originally promised was a sovereignty Act but what was proposed was a truncated, boiled-down and diluted version of their intention in the form of a solitary clause—clause 18. Whichever permutation of clause 18 one looks at, be it what was originally suggested by the Government, the Lords amendment or the Government amendment to the Lords amendment, one finds that it is basically a declaratory statement. It does not take us back or forward; it is a pious declaration, a statement of fact and a statement of the legal position at the moment. Therefore, it does not do any harm and, in fact, it could possibly be useful.

There has been a modest change of emphasis in Government amendment (b) to the Lords amendment, and it is a sensible one. The words “by virtue of an Act of Parliament” were omitted from the Lords amendment and we were concerned that the emphasis was being placed solely on the 1972 Act. Although we recognise that that is the most important piece of legislation regarding the primacy of European law, other items of legislation are involved here. I was particularly pleased that the Minister referred to the legislation on the devolved institutions, as that is important in ensuring that we take a comprehensive approach. Therefore, the Government have put forward a modest improvement to what was suggested by the Lords. I recognise that they have gone some way towards accommodating what the Lords have said and I welcome that, which is why we will be supporting the Government amendment.

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[Mr Cash]

Is the hon. Gentleman actually saying that he agrees with the Government’s proposal, notwithstanding what has been said by the European Scrutiny Committee, Lord Howe of Aberavon and all the other people I have mentioned, and notwithstanding the most powerful legal advice that has been submitted, which suggests that this is a very unwise and dangerous move, for the reasons that I have set out?

[Mr David]

With all due respect, I say to the hon. Gentleman that I have read in great detail all the evidence that was given to the European Scrutiny Committee and I think that his summation of it is his interpretation of the evidence given. Most of the witnesses to the European Scrutiny Committee said, as I have said, that clause 18 is a statement of fact and that it does not take us forward or back. Therefore, we should not get hot under the collar about it.

European Union Bill

Debate between Wayne David and William Cash

Wednesday 26th January 2011 Commons Chamber

[Mr Cash]

I am happy to endorse the view that has been expressed. I wanted to make a general point, and that is really all I need to say at this stage.

[Mr Wayne David (Caerphilly) (Lab)]

I would like to address my remarks to clauses 7, 8, 9 and 10, rather than to the amendments.

European Union Bill

Debate between Wayne David and William Cash

Tuesday 25th January 2011 Commons Chamber

[Mr Cash]

The hon. Gentleman and I have engaged in debates on the European question since we first met. I have the greatest respect for him and he has hit the nail right on the head here, because this problem does not just arise because of our exposure to what happens in Portugal and Spain in the future; it also arises from the lack of a sound legal base for the decision taken in the first place by the outgoing Chancellor and endorsed subsequently by the incoming Chancellor. We know that there was a consensus and that an agreement was reached—that answers the question put by the hon. Member for Ilford South. I would not be going about this if I did not believe that substantial matters of principle and of huge cost to the taxpayer are involved.

[Mr David]

The hon. Gentleman has raised an extremely important point. I wish to emphasise that he is correct to say that there was a consensus between the outgoing Chancellor and the incoming Chancellor—proper discussions and consultation took place—but that was not the impression given to this House by the current Chancellor of the Exchequer.

[Mr Cash]

I was not necessarily here when an impression was being given one way or the other. What I do know is that I have an accurate record of what did take place. I also have with me an article from Monday 10 May containing what are clearly accurate descriptions of the position of the then Chancellor—I believe he was just still the Chancellor then, because the coalition agreement had not been entered into. I recall writing to the Prime Minister on that day, suggesting, among other things, that he should go for a minority Government. I also said that if he was determined to go down the route of a coalition, he should require the Liberal Democrats to abstain on any matters relating to Europe that came up. That possibly explains some of my concerns as matters have developed and more and more European decisions, roadblocks and other difficulties in respect of the decisions we took in our manifesto have emerged.

European Union Bill

Debate between Wayne David and William Cash

Monday 24th January 2011 Commons Chamber

[Mr David]

I have read all the evidence submitted to the Committee, and the significant point about that particular quote was the use of the word “gesture”. The Bill is a gesture, and I will say more about that later. It is a gesture to placate hostility to the European Union among Government Back Benchers, but it is not a serious, considered piece of legislation.

[Mr William Cash (Stone) (Con)]

The hon. Gentleman has referred to Professor Hix’s evidence to the European Scrutiny Committee. Will he note that the professor also said that previous EU amending treaties—Maastricht under a Conservative Government and Amsterdam and Nice under a Labour Government, as well as the Lisbon treaty—should all have been subjected to referendums? If the conditions of the Maastricht referendum campaign, which I founded and which had about 750,000 signatures, had been implemented by the Government at the time—let alone those for Amsterdam and Nice—is it not right to say that we would not be sitting here today discussing this nonsense?

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[Mr David]

No. I will move on. It is important that we realise that as well as the significance provision, the exception provision and the specific exclusion of a referendum on accession of any kind, our good friend the explanatory notes make matters worse and add to the obfuscation of the Bill.

I shall quote from the explanatory notes. Although they are wholly inaccurate and unsatisfactory, they are of some significance. They state that the so-called list in clause 4(4) is “illustrative rather than exclusive,” and they continue:

“In other words, there may be other types of treaty change which do not transfer competence or power from the UK to the EU and therefore do not trigger a referendum.”

What are the other types of treaty change? Has anyone got any ideas? Has the Foreign Office been rubbing its crystal ball? It is not good enough. There should be a clear indication of what the other types of treaty change are.

[Mr Cash]

The shadow Minister referred earlier to the meaning of the word “significance”, and he has just mentioned it again. Is he aware that the “Oxford Dictionary” defines “significance” as

“having a particular meaning; indicative of something”,

and goes on to give as an example,

“in times of stress her dreams seemed to her especially significant”.

Does he know something we don’t?

European Union Bill

Debate between Wayne David and William Cash

Tuesday 11th January 2011 Commons Chamber

[Mr David]

Indeed, and that is my next point. Significantly, the argument made by Eleanor Sharpston QC was rejected.

[Mr Cash]

Does the hon. Gentleman also accept that Eleanor Sharpston has moved seamlessly upwards and has now reached a very eminent position? Does he also accept that the Thoburn case was decided only at first instance, so no one is absolutely sure what would have happened if it had gone to appeal, or if another similar case were brought and those arguments—especially given Eleanor Sharpston’s present eminence—were accepted?

[Mr David]

It is extremely unlikely that her arguments would have been accepted by any legal authority given the categorical rejection of them in that case.

In other words, as Professor Hartley, one of the Committee’s witnesses, stated, the metric martyrs—or Thoburn—principle is that

“the position of EU law in the UK and the sovereignty of the British Parliament ultimately depends on British law”.

In apparent contradiction of the reference to the metric martyrs case, the explanatory notes say that the Foreign Office itself sent written evidence to the Committee that stated:

“Our own analysis has led us to the conclusion that there is no persuasive legal authority to support the contention that the doctrine of Parliamentary sovereignty is no longer absolute. Our assessment is that, to date, case law since 1972 has consistently upheld the principle of Parliamentary sovereignty. There is no uncertainty here.”

Therefore, an argument that the Government accept is irrelevant is the only one that they can advance in their explanatory notes to justify the clause. How ridiculous can things get?

Small wonder, then, that when the European Scrutiny Committee concluded that

“the legislative supremacy of Parliament is not currently under threat from EU law”,

most scholars agreed. Moreover, the Committee went on to say:

“we have no reason to doubt that Thoburn reflected the well understood and orthodox position, which left the constitutional principle of dualism intact and is unlikely to be overturned”.

In view of that assessment, it is hardly surprising that the Government have tried two different arguments. The Minister for Europe said in a letter to his parliamentary colleagues:

“it cannot be denied that the issue has been the subject of legal and political speculation.”

We know about the legal speculation. As we have heard, it was dismissed by Lord Justice Laws and even by the Foreign Office itself. But what about the political speculation? Where is that coming from?

We know from evidence submitted to the European Scrutiny Committee by Jean-Claude Piris, director general of the legal service of the European Council—in other words, its legal adviser—that in his opinion clause 18 changes nothing. He believes that it reaffirms the doctrine of UK constitutional law under which EU law has effect in the UK by virtue of an Act of the UK Parliament. Furthermore, he went on to say that the clause is consistent with declaration 17 annexed to the final act of the intergovernmental conference, which concluded the treaty of Lisbon, and with the case law of the European Court of Justice. It is clear, therefore, that there are no threats coming from European Union institutions.

We do not imagine that any of the Government’s Conservative Back Benchers have questioned the sovereignty of Parliament, and I can assure the Committee that it has not been questioned by any Labour Members. Can it be, however, that the sovereignty of Parliament has been questioned by the Liberal Democrats? After all, they are the most pro-European party in Britain, and of course a former leader of the Liberal Democrats, the right hon. Member for Ross, Skye and Lochaber (Mr Kennedy), is the president of the European Movement. Furthermore, a former leader of the Liberal Democrats in the European Parliament, Andrew Duff, is a well-known European federalist.

That there is political speculation is one of the new arguments. Another has been suggested by the Minister for Europe in his letter to his own MPs, and more recently was advanced by the Foreign Secretary in The Sunday Telegraph at the weekend. He said:

“In its sovereignty clause the Bill also deals with one potential but important problem for the future.”

Having accepted that there are no current valid legal arguments, the Government are now pointing political fingers at unnamed politicians, and even suggesting that clause 18 is being introduced because of a hypothetical problem that may, or may not, materialise at some time in the dim and distant future. At the same time, the Government accept that clause 18 is not really needed at all, because Parliament is already sovereign. It is hardly surprising, therefore, that some have referred to the clause as being indicative of the Bill’s confusion, contradictions and general lack of clarity.

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[Mr David]

That is an interesting point. The Prime Minister, rightly or wrongly, certainly believes that it is in Britain’s national interest to adopt from time to time measures that he perceives to be in Britain’s national interest and then to encourage Parliament to follow suit. We have to decide whether that is the case—but that is another debate.

The debate has brought to the fore a number of important issues. I am thinking in particular of the extremely important argument made in the European Scrutiny Committee’s report on the true nature of the threat to parliamentary sovereignty. The objective evidence presented by the Committee to the House leads it to conclude that

“if the legitimate supremacy of Parliament is under threat, it is from judicial opinions in other areas of law”,

not EU law. That is true. I am thinking in particular of the Jackson case of 2004, which concerned the constitutional validity of the Hunting Act 2004, and in which three Law Lords indicated that in certain circumstances the courts had inherent powers to disapply legislation.

I am worried that the Government do not appear to recognise that there is a real debate taking place on this issue between those who argue that the absolute supremacy of Parliament remains unqualified—as explained by Dicey, the British constitutional scholar—and those who believe that sovereignty of Parliament is a construct of common law. According to those who hold this view, the sovereignty of Parliament is open to revision by the courts. In the Bill’s explanatory notes, the notion of parliamentary sovereignty as a construct of common law is expressed as though it were a matter of fact and entirely uncontroversial. Similarly, a one-page note on the Bill produced by the Foreign and Commonwealth Office states:

“there is a common law principle that the UK Parliament is sovereign”.

It is dangerous to view the legislative supremacy of Parliament as an offshoot of common law, because it means that the principle will vary according to the judicial whims of judges at any given time.

[Mr Cash]

I am somewhat encouraged by the Opposition’s line of argument because, as I explained in my speech, my amendment 10, which deals specifically with excluding the common law principle, does not derive entirely from the explanatory notes but—as the hon. Gentleman has just reminded us, and as we knew from evidence to the European Scrutiny Committee—from the fact of judicial trends, which will not go away. Whatever happens to the explanatory notes, we are still left with a problem, and I believe that the Foreign Office has known this all along.

[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.