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(2)   The Lord Chancellor must use his best endeavours to ensure that the rule of law is respected.

(3)   Nothing in this section shall make the duty of the Lord Chancellor under subsection (2) enforceable by law if it would not otherwise be so enforceable.'.

Mr. Cash: These are very deep issues. In fact, we can say with confidence that the Constitutional Reform Bill, which opens "Part 1, Clause 1, The Rule of Law", is not an insignificant matter, to say the least.

In dealing with clause 1, I have tried to achieve a definition of the rule of law. The Bill establishes duties and obligations, boldly asserting:

Bearing in mind the fact that there must be some profound reason behind the Government wanting to
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achieve this, I believe that we must have a proper definition of what the rule of law actually means. I have suggested that it should be defined as meaning

I have chosen the words carefully because of a House of Lords case in which Lord Bridge made an important judgment on what we can call the Grampian case. The wording that he gave and the wording that I have used vary slightly for a specific reason. He said that the rule of law was

Far be it from me to do more than offer suggestions about how the definition might otherwise be worded, but I am moving the amendment because at the heart of the question of the interpretation of the sovereignty of the Queen in Parliament is the fundamental fact that it is down to judges to give effect to the statutes that are passed in the House. By using the words, "that law", and referring them back to statutes passed by the Queen in Parliament, I am saying that doing that is the prime duty of judges.

There are rather esoteric cases about which it is said that judges might be given a jurisdiction in respect to the prerogative, but I disregard that for practical purposes. There is absolutely no doubt that the sovereignty of the Queen's courts extends to the common law. However, when we consider the interpretation of treaties, the key point is that only treaties that have been given statutory effect would fall under the parameters of my amendment.

Mr. Oliver Heald (North-East Hertfordshire) (Con): Does my hon. Friend accept that in his attempt to define the rule of law, he is defining an element of it, rather than the complete territory covered by the expression? For example, the rule of law says that there should not be arbitrary use of power and that discretion should be conferred on a Government in a limited manner. Does he agree that he is attempting to define an important aspect of the rule of law?

Mr. Cash: That is why the amendment includes the words, "in particular". My hon. Friend refers to the arbitrary use of power, but that would of course be dealt with under the rubric of the common law because that is the arena in which the judiciary rightly have not only sovereignty, but the right to intervene. One can immediately think of a series of common law remedies. With respect, I disagree with my hon. Friend's interpretation of my amendment because it does not leave anything out—it is inclusive. I am saying, however, that the specific reference to the words, "that law", refers back to treaties to which statute has given effect. We all know that treaties do not have any effect in domestic law unless they are implemented by statute, and the Bill would be greatly improved if it made that clear.

Mr. John Redwood (Wokingham) (Con): Does my hon. Friend accept that directly acting European law, such as a European regulation that did not require the express consent of, or translation by, Parliament, would
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still be covered by his doctrine, because it would emanate originally from the European Communities Act 1972?

Mr. Cash: Absolutely. That is where we enter extremely deep territory. We shall come on to those questions a little later.

The fact is that it is open to the UK Parliament, where it is prepared to do so, as a matter of political will that I think is well overdue, to express itself by statute inconsistently with the European Communities Act 1972. In McCarthy's v. Smith, Lord Denning, and in the case of the metric martyrs, Lord Justice Laws, made it crystal clear that judges are under an obligation to give effect to the latest, subsequent, inconsistent, clear and unambiguous enactment of the House.

For reasons that I shall not go into at this point in the debate, serious doubts arise both in the context of the European constitution and also in relation to the question of judicial drift, where it is becoming increasingly clear that judges tend to regard a separate body of law as being somehow superior to that which is enacted in the House. Not only must that be stopped, it must be clearly dealt with in relation to Bills such as this. Indeed, I have tabled new clauses entitled "Supremacy of Parliament" in relation to both the European Communities Act 1972 and the Human Rights Act 1998.

It is well established not only in McCarthys v. Smith and in the metric martyrs case that subsequent legislation passed by the House must be given effect by the judges but also in the context of the Human Rights Act, which I suspect is a matter of considerable concern to the Government at present. By passing that Act, despite my dire warnings and those of others as to what would happen, the Government have in fact found themselves in a considerable judicial or jurisdictional mess. Indeed, in the cases of Simms and O'Brien, as I said when I occupied my previous position on the Opposition Front Bench, Lord Hoffmann unequivocally stated that it was open to the British Parliament to legislate inconsistently with, or even to repeal, the Human Rights Act 1998. He said that if the Government did so, they would have to bear the political cost, but the bottom line is that it is open to Parliament to legislate, as I said in my previous capacity, with respect to both the European Communities Act 1972 and the Human Rights Act 1998, inconsistently with those enactments. It is the duty of judges to give effect to enactments providing that the enactments in question are clear and unambiguous.

That is what I mean by the words "that law" in my amendment. The rule of law means the rule of law exercised by judges in interpreting statute law and the common law. It is unnecessary for me to go into further detail on that question, as I have made my position abundantly clear.

Mr. Edward Garnier (Harborough) (Con): How does my hon. Friend's proposal in amendment No. 364, and the wording that he has been explaining, alter the current position?
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Mr. Cash: It is a clear statement of what is in my view the current position, with a proviso, although I would not want to appear pedantic. In the Grampian case, Lord Bridge stated the same proposition in slightly different wording. As I said when I moved the amendment, he has said that the rule of law means

I say with the greatest respect to such a noble and learned judge that it might have been preferable to have made it clear that the law that was being applied was both that made by Parliament in statute and the common law. For reasons that we have discussed, that would have been a little more precise. I do not want to criticise anyone for having made a slightly shortened version of what I was saying, but I think that the amendment is an improvement.

The question of the prerogative is separate. It is a matter of concern that treaties are made by prerogative and that there is an increasing tendency for those treaties, by judicial drift, to be given a greater status than they have in the context of the making of statute law. Treaties, including of course the European Community's treaties and other agreements such as the European convention on human rights, can have full effect in domestic law only if they are supported and enacted by statute.

4.45 pm

Mr. Garnier: A moment ago, my hon. Friend said that it would be open to the House to repeal the Human Rights Act 1998, which would simply remove the ability of English courts to try European convention points in the courts of England and Wales. Decisions would have to go to the European Court of Human Rights to be justiciable. What would my hon. Friend say if this Parliament not only repealed the Human Rights Act, but passed an Act removing us from the European convention? How would courts under his definition of the rule of law deal with that? Presumably, our membership of the European convention on human rights is a treaty matter and dealt with by the prerogative, and therefore not within the power of this House or this Parliament to affect.

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