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EU Constitution

4 pm

Mr. William Cash (Stone) (Con): It is a great pleasure to be here and to deal with an issue covered by the Bill that I presented to the House of Commons the day before yesterday. Curiously, I have just had the pleasure in the European Scrutiny Committee of meeting the Speaker of the Slovakian Parliament, who indicated that, enthusiastic as Slovakia is about becoming a member of the European Union, it is concerned about the parliamentary democracy of nation states in the EU. I mention that because it reflects some of the concerns that I have been pressing for some 18 years, almost from the time that I first came into the House.

I should like to say how sad we are about the recent tragic bereavement suffered by the Minister for Europe. We are sorry that he cannot be here, but more than understand why. I am grateful to the Minister for Trade and Investment for coming instead.

Until very recently, because of the passing of the European Communities Act 1972, a Bill such as mine would have been useful for reaffirming that the United Kingdom Parliament's laws prevailed over European laws, but it would not have been essential. It now is. The sovereignty of Parliament is the guarantee of British voters' democratic freedom. Parliament needs reform to bring it back to its objectives, and it is now in mortal danger. We must remind the courts that they owe allegiance to the Queen in Parliament and to the voters of this country. It is said that judges are appointed quamdiu se bene gesserit—that is, so long as they behave—in the national interest for which they were appointed, and in accordance, of course, with the proper procedures and laws that they are called on to interpret.

What does my Bill do and why is it now essential? It is a very simple, two-clause Bill that provides that European treaties and laws shall be binding in the courts of the UK only to the extent that they do not conflict with any subsequent Act or statutory instrument of the UK Parliament that expressly declares that any such subsequent enactment shall take effect notwithstanding the 1972 Act. That is to say that Parliament prescribes and the courts must back it. That is the crucible.

My Bill is now urgent because the European constitution has been back at the top of the agenda since the new pro-constitution Spanish Government came to power. Ironically, the Poles are alone yet again. The United Kingdom must therefore reassume the leading democratic role in Europe, as it did in the dark days, even if the circumstances have changed from military aggression to European legislative manoeuvre.

The European constitution not only reasserts the primacy of European laws, but also asserts the primacy of the European constitution over the constitutions of the United Kingdom and other member states. It gives the European Court of Justice the role of superior jurisdiction over both, as well as over our newly proposed supreme court, which explains why it is being driven through in the Constitutional Reform Bill, currently in the House of Lords, before the constitution is enacted. The European Court of Justice, with its ever-increasing arrogation of judge-made law, will, in effect, also have power to strike down Acts of the United Kingdom Parliament that are inconsistent with the vast

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range of the constitution. Indeed, the director general of the European Union legal service and legal counsel to the intergovernmental conference, Mr. Piris, stated:

If the constitution goes through, the situation against national laws will be damagingly aggravated.

The practical consequences of the current role of the European Court of Justice are that if it declares an infringement, our courts are bound to give effect to that judgment under section 2 of the 1972 Act. For example, the Merchant Shipping Act 1988 was struck down by our courts. The UK Parliament is, as a result of the 1972 Act, obliged to legislate to achieve conformity with EU legislation and the treaty obligations. My Bill says that if, on behalf of our electorate, we decide not to do so, and therefore decide not to subscribe to those treaty obligations but to insist on our own legislation, our judges must apply and uphold that subsequent and inconsistent Act of Parliament, provided that it is clear and unambiguous. By that I mean inconsistent with the European Communities Act 1972 and the Community instruments, treaties and obligations.

Lord Woolf's insistence that the UK supreme court should not be empowered to strike down UK Acts might be because he wants that to be reserved to the European Court of Justice, as clearly both the Prime Minister and his chum the hapless Charles Falconer—the noble Lord Chancellor—intend. Let us remember that Acts derive their authority from the voters, and it is no wonder that we need a referendum on the constitution. If the Prime Minister continues to refuse one and drives the constitution through Parliament on a three-line Whip, without specific manifesto authority, the Conservative party must promise a referendum if and when the constitution is enacted, and in any event.

I have argued the dangers of all that for years, in particular in the past two years as shadow Attorney-General and shadow Minister for Constitutional Affairs, and in my most recent pamphlet "The European Constitution—A Political Timebomb. That was published last October and I am now publishing a new one, "The Strangulation of Britain and British Business. They both illustrate the need for the reassertion of parliamentary sovereignty over European laws and the acquis communautaire, and the obligation of UK courts to give effect to the latest Acts that are inconsistent with such laws, provided they are clear and unambiguous.

The issue came to a head last September when the Foreign Secretary said on the Floor of the House:

My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and I refuted that. We tabled a series of questions, which ran into 2004, and forced the Government to back down. Our exchange eventually led to this answer:

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of the proposed constitution. It continues:

It is always right to set out the case as fairly as possible and that is the Government's stated position as of January. I am prepared to say emphatically that that was not their view a few months before, but it is now on the record. If there are treaty obligations, which, of course, are made by prerogative, that are out of date or contrary to our national interests—as is so much European legislation, including the proposed European constitution, if it were to be enacted, and the common fisheries policy—they should be amended or repealed if the other member states and the European Commission will not renegotiate them.

I have always argued that if we are to be responsible in dealing with legislation that this Parliament would not want to continue to accept, we must first engage in the process of presenting our arguments to the other side—to those whom we oppose. After that, if they will not listen, we must steer our own course, as I put it in my personal message to my electors in the last general election. After all, every European treaty since 1972 has been a renegotiation, but only in one direction: further integration. European prerogative treaties—treaties that are made—would be swallowed up by the constitution which, when enacted, would prevail greatly to our disadvantage.

Having retreated in the face of our barrage, the Government will no doubt claim that, in view of their now stated position, my Bill is not necessary. That is not so. The reality is that we are facing the 21st century version of the bloodless revolution of the 1690s, except that the substitution of the Stuarts by the Hanoverians—merely one monarchy for another—was far less momentous in retrospect than the usurpation of our democratic Parliament by the European constitution. Democracy depends for its practical effect on delivery through effective accountability and fair and proper democratic procedures, not through waffle about abstract virtues.

Another important analogy is that the judges under the bloodless revolution were no longer appointed, as they had been previously under the Stuarts, at the King's pleasure—durante bene placito Regis. They were appointed so long as they behaved themselves—quamdiu se bene gesserit. Seeking to arrogate to themselves the making of laws at the expense of democratically elected representatives in Parliament would be beyond the pale, especially if that was accompanied by encouraging the judicial activism of the European Court, which is a new form of usurpation.

The forced abdication of James II was strictly unconstitutional and illegal. However, the absurd idea that it would have been possible for the Stuarts to return after they had been airbrushed out of the system was demonstrated by the failure of the Jacobite rebellions of 1715 and 1745. If we do not reassert the obligation of the UK courts to give effect to UK legislation subsequent to and in conflict with European laws, including the European constitution, we will face a similar fait accompli, but it would now be undemocratic.

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Our parliamentary laws and the Westminster law-making system will be deemed to have been absorbed in practice, as events move forward, by the constitution and the assertions of the European cause. It will be an abdication by our Parliament if it whips through and enacts the European constitution without a referendum. The claims made by the European court in Costa v. ENEL, and a few other cases that I shall mention, for its own overruling jurisdiction would become reality. Such is the stuff of modern revolution.

Someone may have been listening to that whispering wind because the House of Lords European Union Select Committee report this month called on the Government to state their view on whether the European Court or national courts should be the final arbiter of the dividing line between UK and EU law, especially in the context of parliamentary sovereignty when there is conflict. That is what my Bill is all about, and I want Parliament to dig in its heels. I am not interested in the Government's weasel words because we have heard far too many of those on the subject during the past year or so.

The matter cannot be left to ambiguity. Present case law is clear. The judgment of Lord Denning in Macarthys Ltd. v. Smith and of Lord Justice Laws in the more recent metric martyr's case, Thoburn v. Sunderland city council, is clear. Let me take the opportunity to place on the record the sad tragedy that Mr. Thoburn died only a few days ago, ironically within a few days of the death of Sir William Wade, the great authority on the interaction of European law and the British parliamentary system.

Lord Denning stated in Macarthys Ltd. v. Smith:


that is, the European treaty—

We must keep the courts to that in the light of the European constitution, and the wording in my Bill follows almost exactly the words of Lord Denning in that judgment.

I have set out what my Bill does. There is no time and no scope for uncertainty or ambiguity, or for allowing the Government or the European elite room to manoeuvre. The Bill is backed by many distinguished Conservative MPs and Privy Councillors, and by hon. Members on both sides of the House—

4.15 pm

Sitting suspended for a Division in the House.

4.29 pm

On resuming—

Mr. Cash : The matter is of vital national interest and I trust that I shall have the support of the Conservative leadership and a commitment to my proposals in the manifesto for the European elections and the next general election. The claims made by the European

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Court in Costa v. ENEL and the Internationale Handelgesellschaft and other cases, and the related line of European Court cases in relation to what is called Kompetenz-Kompetenz, cannot be underestimated, as the Foreign Secretary sought to do, especially in the light of article I-10(1) of the proposed constitution. The constitutional courts of Germany, Denmark and Italy are all in defiance, but look as if they may be about to roll over. The legal adviser to the European Council and others said:

That suggests a lack of will by member states. One has only to look at the outpourings of the European People's party and the Christian Democrats in Germany, not to mention a host of others, to observe that that is not correct. Furthermore, the simple reality is that the ever-pervasive and encroaching—

4.31 pm

Sitting suspended for a Division in the House.

4.45 pm

On resuming—

Mr. Cash : Furthermore, there is a simple reality: the ever-pervasive and encroaching role of the European Court of Justice, now to be enhanced by the European constitution. It is a case of "Now you see it, now you don't. It is a world of magical mirrors, engulfed in smoke. It is disingenuous and naive—I would say downright dishonest—to suggest that EU constitutional boundaries have been reached.

We only have to consider the 1970 White Paper and the evolution of the EU over the past 35 years to get the point. We need to ensure that our courts, without a written constitution, do not stray in the wrong direction. If the Government were sincere in their declarations that they do not want a superstate, they would commit themselves to the proposals that I have outlined.

4.45 pm

Sir Teddy Taylor (Rochford and Southend, East) (Con): I congratulate my hon. Friend the Member for Stone (Mr. Cash) on a magnificent speech and on his battle to preserve democracy in the European Union. It cheers up the people of Rochford and Southend, East enormously that he still feels positive about democracy, when their own MP has become such an absurd pessimist on the issue.

I ask the Minister one simple question. On 6 November 2002, a Minister of State at the Department for Work and Pensions told me that, following discussions with the European Commission, the Government were told that under regulation 1408/71, Britain would have to pay winter fuel payments to British residents in Martinique, Guadeloupe, French Guiana, Reunion, the Azores, Madeira and the Canary Islands, all of which are overseas territories of Europe. The cost would be £10 million. As a result of the Chancellor's Budget, it will now cost us £15 million.

As those are areas of sunshine with no coldness at all, my constituents want to know that if our Parliament thinks, as I do, that that is nuts, crazy and an abuse of

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funding, can British MPs vote to stop it? If the 659 MPs say that that is stupid, nuts, wrong and a waste of money, my constituents, especially the pensioners in Southend who suffer from the cold, want to know whether Parliament can stop it? Can we say that the people who live in Guadeloupe, Martinique and the Azores will not get winter fuel payments, and perhaps the people in Iceland or the north of Canada, where it is cold, will? If the Minister can give me an answer—perhaps not today, but by letter—that will reassure my constituents who feel that our democracy is almost dead and wonder why we have MPs at all.

4.47 pm

The Minister for Trade and Investment (Mr. Mike O'Brien) : I congratulate the hon. Member for Stone (Mr. Cash) on securing the debate. The hon. Member for Rochford and Southend, East (Sir Teddy Taylor) will be pleased to know that the new European constitution, if adopted, would give greater power to the British Parliament to deal with such issues, so I am sure that he will vote for it.

Sir Teddy Taylor : Would it have the power to stop that payment?

Mr. O'Brien : I had not given way, but I had made my point. I will happily write to the hon. Gentleman on the detail.

As for the main debate, the hon. Member for Stone argues that the draft constitutional treaty for the EU will undermine the sovereignty of this House. He could not be more wrong. Nothing in the new treaty, as drafted, would alter the fundamental relationship between this country and the European Union. The new treaty will strengthen the role of national Parliaments in EU business, which is why I can say what I said to the hon. Member for Rochford and Southend, East. The new treaty will strengthen that role.

The treaty will, for the first time, give this Parliament a power, at the EU level, to monitor and enforce subsidiarity. This House, and other national Parliaments, will be able to force the Commission to reconsider measures that do not meet the fundamental principle that decisions should be taken as close as possible to Europe's citizens.

The suggestion made today by the Leader of the Opposition that the draft treaty is the capstone of a federal state is sheer opportunistic hyperbole and soundbite claptrap. There will be a significant enhancement of the role of this House in European affairs under the provisions, if they are agreed. That reflects the Government's belief in the integral part that Parliament should play in debating and influencing the policies of this Government and of the EU. On 11 February, my right hon. Friend the Foreign Secretary set out to the House various ways in which the Government propose to enhance that role of Parliament. They include the publication of an annual White Paper on the forthcoming plans of the Commission and of the European Council and giving sufficient notice of them to all Members of the Commons and the Lords so that they have an opportunity to influence policy before it is set in stone.

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The opportunities for parliamentary involvement in the preparation and scrutiny of the draft treaty have been unprecedented. During the intergovernmental conference alone, Ministers attended eight Committee sittings—including three sittings of the new Standing Committee of the Intergovernmental Conference—that gave parliamentarians the chance to influence the negotiations. If this constitution is so important, it beats me why so few on the Conservative Front Bench—with the honourable exception of the hon. Member for Stone when he was on it—bother to turn up. We participated in more than a dozen debates on the same topic in this House and the other place last year, responded to 16 Committee reports and answered 60 parliamentary questions. That was in addition to the White Paper published in September, which set out the detail of our approach to the negotiations.

In May, 10 new member states will join the European Union, ending the cold war division of Europe and creating an enlarged single market of more than 450 million people: larger than the United States and Japan combined. There are huge advantages in that for Britain. However, if we want to maximise those advantages, we need to modernise the EU's structures to make it work effectively as a union of 25 countries. The new constitutional treaty will make the EU more effective and will give a clear definition of what the EU does and does not do. The constitution will not alter the fundamental constitutional relationship between the member states and the EU.

The hon. Gentleman claims that none the less the treaty will establish the principle of the primacy of European law and so end in some way the sovereignty of this Parliament. He claims that it will make the laws passed by this House and the other place in some way less relevant, or even redundant, as the EU will be able to override them. He believes that we should reject the principle of the primacy of EU law so that member states can effectively pick and choose which EU measures to adopt and implement.

Let us examine those claims. First, the principle of the primacy of EU law is, as the hon. Gentleman knows full well, well established. He should know because my right hon. Friend the Foreign Secretary has been telling him that for a long time. The principle has been accepted since at least 1964, when the European Court of Justice ruled in the case of Costa v. ENEL that the law "stemming from the Treaty cannot

That is what Britain signed up to when the Conservative Government of the day joined the then European Community. This House gave effect to the principle of the primacy of European Community law through the European Communities Act 1972. Is the Conservative party now opposed to that position, which it has supported for the past 30 years? Or is the hon. Gentleman out on his usual anti-euro limb? That remains to be seen.

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Ann Winterton (Congleton) (Ind Con): Will the Minister give way?

Mr. O'Brien : The hon. Lady has not been present during the debate and she is aware that I have limited time, but I will be gracious and give way.

Ann Winterton : I am most grateful and I apologise for not having been here earlier. Is the Minister aware that the Minister for Europe in his Government has said in a written reply:

Is that not the opposite of what the hon. Gentleman has just been saying?

Mr. O'Brien : No, our position has been entirely clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations, but we should be in no doubt about what that would mean: withdrawal from the EU, which would be a disaster for the UK.

As far as we are concerned, the draft constitutional treaty explicitly states the principle of primacy, and that makes those on the Opposition Benches nervous. One of the purposes of the treaty is to lay out clearly EU principles and our relationship with the EU. The Conservative party signed up to those principles in 1972; it knew what it had signed up to. That is why we support a declaration proposed by the Italian presidency during the intergovernmental conference negotiations last December that spells out that

Mr. Cash : Will the Minister give way?

Mr. O'Brien : The hon. Gentleman has had his say; I have not got long, and I would like to make some progress.

We support that proposal for clarity because if EU law did not have primacy, there would be no single market. If member states could pick and choose which European legislation they enforced, they would ignore legislation that threatened the protectionist measures that give special privilege to their industries, and we

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would not have the level playing field on which thousands of British businesses and hundreds of thousands of British jobs depend.

The reality is that co-operation with our European partners on everything from the single market to stopping pollution to fighting terrorism depends on each member state implementing the measure that it has agreed to. To argue against this part of the treaty, as the hon. Gentleman is doing, is to argue against the very idea of European co-operation. Here, perhaps, we get to his real agenda. His pamphlet of October last year entitled "The European Constitution—A Political Timebomb advocates a two-tier Europe where the UK has a relationship of trade and association with the EU. It is a scenario in which the UK would be forced to implement EU legislation if it wanted to continue to trade with Europe, but in which the Government and Parliament would have no influence on that legislation. How the hon. Gentleman could see that as a blow for parliamentary sovereignty escapes me.

The primacy of EU law is a well-established principle that has sat alongside the principle of sovereignty of this Parliament for 30 years. Nothing in the proposed treaty will change that. Most lawyers will be familiar—I am sure that the hon. Gentleman is—with Lord Denning's view expressed in his judgment in the Bulmer v. Bollinger case in 1974. He said:

In other words, the Conservatives signed up to this in 1972. Their attempt somehow to disassociate themselves from the principle 30 years later is frankly opportunistic hogwash.

In order to give the provisions of the new treaty effect in UK law, they will have to be passed by Parliament. If Parliament so chooses, it can refuse to pass this legislation. Indeed, it could repeal the European Communities Act 1972. As Lord Denning also said in the case of Macarthys Ltd v. Smith, it is always within Parliament's power to legislate contrary to the UK's treaty obligations, but we must be clear that to pursue that course would be to breach our treaty obligations, and we would be signalling our withdrawal from the EU.

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