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Mr. Cash: I do not agree with that at all. I suspect that my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) is about to leap to his feet. We had an interesting and quite heated exchange with the Foreign Secretary on this question on 16 September two years ago, when I was on the Front Bench, when he asserted that international treaties have primacy over statute. Of course, that is complete nonsense. After much further questioning over the following year, both written and oral, he eventually conceded that that was wrong.
I refer my hon. and learned Friend to the Commissioners for Revenue and Customs case and to the judgment of Lord Diplock in—I think—1967, in which he unequivocally stated that it is open to any statute to break a treaty. I paraphrase, but I have the full text in front of me if my hon. and learned Friend is
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interested. The bottom line is that this is very important territory and that is why I am so concerned that there are those who would like to bury the question of the supremacy of Parliament and would rather that it was not given the coverage that I would prefer.
Keith Vaz (Leicester, East) (Lab): The hon. Gentleman will know that the Second Reading of the European Union Bill will be taking place next week, so I am sure that we will have more of this in that debate. Can he think of an example in recent history of a Lord Chancellor acting contrary to the principles set out in clause 1(b) of this Bill?
Mr. Cash: I can say unequivocally that we have seen a serious invasion of the principles on which our constitution has been constructed, since 1688 at any rate—over and over again. That problem has worsened. It is extremely disturbing that that tendency has been perpetuated and entrenched by the Government, who have behaved wantonly with regard to the rights and principles on which our constitution is based. We could be here all day discussing that.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I am not a lawyer, but there is a simple but important constitutional principle at stake. It has been adumbrated by parliamentary Committees, and it deals with the relationship of treaties to law. Treaties that exercise a prerogative power are subordinate to the legislative process. The European Communities Act 1972 has the force of law in Britain only because Parliament has thus legislated. Similarly, the European Court of Human Rights is subject to detailed legislation, so one can say that it meets the constitutional test. Other treaties, however, are pure exercises in prerogative power, and are therefore gainsaid by any direct reference in British law that is contrary to any of their provisions.
Mr. Cash: I am grateful to my hon. Friend for that explanation and the reaffirmation of the position. It is important to consider what a constitution is. In the United Kingdom, we understand it to be the whole system of government and collection of rules, which would effectively be translated into a justiciable statute, as the courts would have the power to interpret the provisions of the Bill. That raises the stakes considerably. Parliament is involved, but only to a limited extent, in the making of treaties, which are laid before the House for 21 days under the Ponsonby rule. In a 2002 All Souls lecture, Lord Steyn said that
I wish to reassert that principle, and it is a matter of grave concern that it has been subject to continuing erosion by judicial drift. The cases of McCarthy's v. Smith, the metric martyrs and so on demonstrate that the European Union has assumed a legal personality, so we are in extremely dubious and difficult territory. In the 1964 case of Costa v. ENEL, and also in the Simmenthal and Internationale Handelsgesellshaft cases, the European Court of Justice has asserted its supremacy and superiority of jurisdiction not only over the laws of member states but over their constitutions. We acknowledged its primacy in the European Communities Act 1972, but only in respect of laws that had been enacted and functions conferred at that time.
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The whole thing has got completely out of control, and we now have a deepening to the point where the European constitution could effectively become the rule of law for the United Kingdom. Under article 1.6, it is clear that the European constitution—through the European Court of Justice, with the revocation of the treaties, and the reassertion of primacy over the new treaty, which is completely new—would have the effect of subordinating the will of the legislators in the House to decisions that were taken by the European Court of Justice.
In other words, the rule of law and the principles contained in the Bill would subordinate the people of this country in their choices in general elections to the jurisdiction of the European Court of Justice in relation to all the matters in respect of which powers were conferred under the European Union Bill, which we are about to consider. Perhaps I can leave things at that for this purpose—although this is a very serious and deep question, we need to consider other matters today—but the bottom line is that this matter ought to be clarified, and the amendment is one way to achieve that.
Mr. Heald: In our constitution, there is no true separation of the powers of the three main institutions of the state: the legislature, the Executive and the courts. Although we have three such bodies, their powers are mixed and mingled. The Executive come from the legislature, but each is supported by an interdependent civil service, and in the case of Parliament, by the House authorities. The courts are independent in their judgments, but the senior judge is a member of the Cabinet as Lord Chancellor, and the courts are run by the civil service, which is part of the Executive.
In such a constitution, strength comes from being part of the mixture and having a place at the table where power is exercised—in Cabinet. The Executive are stronger by being part of the legislature and by having a majority there. Parliament can benefit from holding Ministers to account in a very direct way, using questions, statements, debates and Select Committees. The post of Leader of the House is a senior Cabinet appointment. The courts benefit from having a senior Cabinet Minister—the Lord Chancellor—at the seat of power, arguing for judicial independence and being the Prime Minister's conscience by advocating the importance of the rule of law.
It is a sad reflection that the Prime Minister did not appreciate any of those important considerations when he set about abolishing the post of Lord Chancellor on the back of a reshuffle. It was a back-of-the-envelope job, decided at short notice, without even consulting the Lord Chief Justice, and done in the cosy atmosphere of the chums around the sofa at No. 10—of course, by that time the chums no longer included the then Lord Chancellor.
Lord Butler has expressed his concerns about the way in which the Prime Minister conducts his business, and particularly about the fact that the advice of senior civil servants is often not considered. We now learn from documents released under the Freedom of Information Act 2000 as a result of my requests that the most senior civil servant in the Department advised against dismantling the Lord Chancellor's role very strongly indeed. He said:
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"My advice is that the Lord Chancellor should resist all proposals to dismantle his office . . . the fact that the Lord Chancellor is also a senior Minister is a particular advantage".
The Prime Minister made the changes without even considering such advice. He may well feel in retrospect that it would be better never to have started the process of abolishing such an important post; it has brought him nothing but trouble and hasty backtracking.
Clause 1 recognises the constitutional principle of the rule of law and the Lord Chancellor's role in that context, and that the clause itself need not be justiciable. However, the clause does not go far enough. The Bill does not recognise the twin principles of the rule of law and parliamentary sovereignty. It does not urge the Lord Chancellor to use his best endeavours to ensure respect for the rule of law, which is a key role for him to act with other Ministers and in Cabinet. The rule of the law is not explained in any detailed measure in our constitution, and we agree with the Government that to make it justiciable would give judges too wide a scope to determine our constitutional law.
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At its simplest, "the rule of law" is used to denote that law rules, that all a Government's powers are derived from statute or the royal prerogative, and that individual rights cannot be infringed without the authority of one or other source of power. However, it goes further in asserting that where discretionary power is given to the Executive, it should not be arbitrary power, and that society is entitled to expect established principles of fairness and justice from its ruler.
Taking a wide interpretation of that principle, there are respectable arguments that certain provisions in anti-terrorist legislation could be regarded as infringing the rule of law, and provisions limiting the rights of terrorist suspects might be said to fall within that category. The Government do not accept that analysis, but the Lord Chancellor's role is to air such concerns in Cabinet, if only to explain why he does not agree.
The doctrine of the sovereignty of Parliament is a doctrine of the courts: Parliament is sovereign only because the courts say that it should be. Until the middle of the 18th century, common law judges generally held the view that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and now we all readily admit that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts, not of Parliament.
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