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3 Feb 2003 : Column 60—continued

Mr. John Redwood (Wokingham): But are not the Government being entirely logical? Are they not saying, "We have absolutely no influence over the matter; we shall be told what to do by the European Commission in future; we are useless at negotiating and we shall be unable to control it; so why give a toss about Parliament either"?

Mr. Cash: Indeed. That is very much the tenor of my article in The Daily Telegraph today on House of Lords

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reform. The issue relates to democracy. I said much the same in a debate on scrutiny and accountability in Westminster Hall last week. This stuff comes up over and over again. It is about our legal and practical co-operation with Europe. However, if we have order-making powers whose effect is to make presumptions about their operation in practice, and which run against the principles adumbrated by the courts, we have a process that I have called "Wolsey's revenge". That Lord High Chancellor dared to challenge the king but managed to escape by dying just in time. None the less, we now have a new Lord High Chancellor, who comes along and tells Parliament, "We will legislate, using this order-making power and my unelected authority, to drive through the provisions on future Community law." That is offensive to the constitutional principles on which our legislative process is founded.

Mr. Redwood: Surely the moral of my hon. Friend's excellent tale is that Wolsey was a Euro-enthusiast, and he was, of course, replaced by Britain's first and greatest Eurosceptic, Thomas Cromwell. Is not there hope for us all if we can build on that model?

Mr. Cash: There is indeed, but I would also point out to my right hon. Friend that the fate of Thomas Cranmer and Thomas Cromwell is not one that I would want visited on anyone.

Mr. John Gummer (Suffolk, Coastal): I wonder whether our common religious position would not make us both very wary of being too supportive of Thomas Cromwell, whose history in such matters was thoroughly disgraceful.

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. We have heard enough history; perhaps we can return to the present day.

Mr. Cash: Indeed, Mr. Deputy Speaker; otherwise we shall all be hanged, drawn and quartered—not on your instructions, I am sure.

Mr. Deputy Speaker: Order. I can assure the hon. Gentleman that that is not one of the powers of the occupant of the Chair.

Mr. Cash: I wish to refer to the problem that arises in respect of regulations made under those provisions. Again, under section 2 of the 1972 Act, regulations can be introduced by a designated Minister for the purpose of implementing Community obligations. However, schedule 2 to that Act says that regulations may not be used for a number of purposes, one of which is taxation; another is a provision having retrospective effect. If the issue has already been decided, there is an "Alice in Wonderland", Lewis Carroll quality to the problem.

Tony Cunningham: I often feel that I am in an "Alice in Wonderland" situation when the hon. Gentleman is speaking.

Mr. Cash: Well, as I said on another occasion, words mean what we choose them to mean; the question is:

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The masters are undoubtedly those who are pulling the strings to get such an order through. They are instrumental in ensuring that the provision, which has already been determined, states that the Council will adopt a decision to that effect and that it will be implemented. However, the provision could well turn out to be retrospective.

We know that the provision is based on a hypothesis; we do not know which referendums will be successful, and to get their ducks in a row or to get the pieces of the jigsaw into the right pattern, the Government may have to make adjustments by order that could well infringe the principles of schedule 2 to the 1972 Act by making a provision that has retrospective effect. There is a further restriction under schedule 2 to the 1972 Act, which refers to a power-delegating legislative authority. Again, that provision could well fall foul of those arrangements.

6.15 pm

We are considering a Bill, and I am very conscious of the fact that the votes are against us. The Minister has indicated during our proceedings that there is nothing much that I can do about such things anyway because, after all, they are Community obligations—she uses the phrase "Community law" in the Bill—and therefore I will have to put up with them. However, I can tell her that I will not put up with them. We in Parliament should not simply have it dished out to us that this is the way in which we legislate as a matter of principle. Serious questions lie at the heart of this debate.

Again, as recently as 2001, the Secretary of State for Trade and Industry was involved in the case of Orange, the mobile phone company. The court said that although the power to make Community subordinate legislation had been widely construed, the Government must clearly indicate what primary legislation is being repealed or amended when that procedure is invoked. Perhaps we will find ourselves in difficulty about that as well.

I cannot prejudge what a court would say in that context, but I can give the general principles on which such things are determined and construed. For example, the European Court of Justice has asserted that it has supremacy over our legislation. I can say that, without a shadow of a doubt, that is not the case. Indeed, many authorities—Lord Denning and Lord McCarthy—can be cited, and Lord Bridge said that all this was based on the voluntary agreement that we entered into in 1972. Well, it may have been voluntary in 1972, but if we were to introduce legislation the effect of which was inconsistent with section 2 of the 1972 Act, there would certainly be a conflict between what the European Court of Justice said and what was implemented under the 1972 Act, which stated that we must obey the rulings of that Court.

I shall not demur from that view in so far as I believe in the rule of law, but I will not accept the idea that, for all time, we are bound by the acquis communautaire and we cannot legislate on our own terms if we wish to do so. The provision raises those questions of principle, and they have not been properly examined, so I should be interested to see how the argument develops.

Angela Watkinson (Upminster): As my hon. Friend knows, I served on the Committee that considered the Bill. During the debates in Committee, he said:

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He went on to say that it is not satisfactory to legislate on the basis of hypothesis or anticipated change. Will he say to which courts he was referring in that comment? Is it in the powers of our own courts to strike down such legislation; or are they subservient to the European courts?

Mr. Cash: My hon. Friend makes a very important point. Such things could be dealt with initially by our own courts but then referred, via the House of Lords, to the European Court of Justice. Alternatively, the House of Lords could adjudicate on its own terms in implementing the jurisprudence, which has tended to evolve, whereby the House of Lords tends to agree with what the European Court has ruled. That is a matter for Parliament, and a great deal of judicial activism is going on in that business. I say unequivocally that I regard the question of certainty as something for the United Kingdom courts to determine, but I cannot stop the appeals process because, as I have said, I subscribe to the rule of law.

I am concerned about the political and constitutional consequences of such things, which are even coming to bear on the Prime Minister in relation to article 3 of the European convention on human rights, where it is unambiguously the case—as Lord Hoffmann said in the case of Simms and O'Brien in 1999—that the British Parliament can legislate in a manner inconsistent with the convention provided that it does so expressly and unambiguously. I believe that that doctrine continues in relation to the 1972 Act, although I am well aware that that is not accepted by those in the European Court of Justice.

Lady Hermon (North Down): I do not find it helpful to confuse the jurisprudence of the European convention on human rights with that of the European Court of Human Rights. The hon. Gentleman will know perfectly well that the supremacy of Community law is paramount. Can he cite one case—just one—in which a British court has not given supremacy to Community law?

Mr. Cash: What I can do is to indicate, as I did earlier, that the McCarthy decision, for example, clearly ran counter to some of the subsequent decisions. According to the authorities that I have at my disposal, there is no doubt at all that the issue has not been resolved, despite the statements by Sir William Wade and others that there has been a revolution in these questions. I can sum that up by reference to the authority's conclusion in the chapter on the United Kingdom and the European Union, which says that, although constitutional dogma has been shaken, the problem of sovereignty has not been adequately resolved, but it is unlikely that everyone would agree now with the view expressed in 1972 that the ultimate supremacy of Parliament will not be affected, and it will not be affected because it cannot be affected. Crucially, that is because it emanates from the 1972 Act. The authority also states that only time will tell whether that is a problem of any practical

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significance and, if so, whether closer political union at Community level can be built on such foundations. That raises the issue of extrapolation of ideas, the extension of the European Court, and the issue of European integration, the convention and the constitution, which is coming down the track like a runaway train.

Although that is a specific example, the reality is that it shows in embryonic form the nature of the problem. In response to the hon. Member for North Down (Lady Hermon), case law indicates that the supremacy of Community law is not a given. Whether it is open to us to obviate the difficulties by addressing the manner in which the European Communities Act 1972 is devised, however, is a question of political will and of constitutional issues, without prejudice to the fact that, generally, through judicial activism, there has been an increasing tendency for our courts to agree to the emanations from the European Court of Justice. We are reaching breaking point, however, and some would say that we have gone past it.

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