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Mr. Shepherd: In one way or another, I am listening to a rewriting of our constitution. Many of us say that the sovereignty of Parliament is a valid constitutional concept because it represents the sovereignty of the people, which is inalienable. My difficulty with my hon. Friend's argument is that we are discussing very big constitutional themes. I do not know how the rule of law is defined, who defines it, how it is a constitutional document and how we can safeguard it. Perhaps my hon. Friend will point out where the rule of law is satisfactorily defined in the Bill so that we, the people—let us use the language of constitutions—can determine whether the Bill is consonant with the rule of law.
Mr. Heald:
The answer might be that academics identify various categories of the rule of law, which
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cover everything from the simple statement that "the law rules", to examining issues involving arbitrary power and discretion. The term can be used very widely.
I agree with my hon. Friend the Member for Stone (Mr. Cash) that a case exists for placing parliamentary sovereignty at the core of the definition of the rule of law and including it in clause 1. My method, new clause 8, involves recognising a separate principle concerning the sovereignty of Parliament in clause 1. Clause 1 is included in the Bill because of the proposed abolition of the role of the Lord Chancellor, and it defines exactly what his roles have been in the past, given that his current role is being changed. The original proposal was to abolish him completely, but we have made a little progress on that point.
New clause 8(2) would require the Lord Chancellor to
by Ministers other than himself, which is our understanding of what a Lord Chancellor does in Cabinet. If a Minister proposes a draft legislative measure that, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so, which is what new clause 8(2) would allow. That point should be made clear on the face of the Bill.
Keith Vaz: I return to the point that I made to the hon. Member for Stone (Mr. Cash): can the hon. Member for North-East Hertfordshire (Mr. Heald) think of an example of a Lord Chancellor in the present Administration or the previous Administration who has not discharged his functions according to clause 1(b)?
Mr. Heald: It is because we believe that the proud tradition of the role of Lord Chancellor is to uphold the principles of the rule of law that we are so anxious to have such a provision on respecting the rule of law added to the Bill.
Mr. Shepherd: How can we possibly know? I presume that the Lord Chancellor's advice is given in confidence to the Cabinet. We will not know one way or the other. That is part of the reason why one wants to tickle out what these provisions mean.
Mr. Heald:
I agree that we want to add to the Bill that part of the Lord Chancellor's duty should be to speak up in Cabinet for the principle of the sovereignty of Parliament. Of course we do not know exactly what happens in Cabinet until the memoirs are written, and the 30-year rule no longer applies. It is my impression, however, with which I hope that my hon. Friend might agree, that successive Lord Chancellors—senior figures in their own right, legally qualified, and towards the end of their career—have been prepared to stand up for the independence of the judiciary, the rule of law and the important role of the sovereignty of our Parliament. We would like to preserve the Lord Chancellor's existing duties in respect of the rule of law, and to ensure that the change in the more general duties of the office of Lord Chancellor does not alter the important duty to
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bring to the attention of other members of the Government any proposed action that may offend against the rule of law.
Vera Baird (Redcar) (Lab): I follow what the hon. Gentleman is saying, but I am concerned about the way in which he has chosen to try to do it. First, if he accepts that the Lord Chancellor's existing constitutional role is to protect the rule of law, why is he concerned? Clause 1(b) expressly says that
must survive. He is therefore just repeating an existing provision. It concerns me that, in fact, his new clause 8 would erode that duty, because all that new clause 8(2) would require the Lord Chancellor to do is to
New clause 8(1) separates the two, saying,
"Together with the sovereignty of Parliament, the rule of law shall continue to be a central principle",
but requires the Lord Chancellor to protect only the second, not the first.
Mr. Heald: That is exactly the point made by my hon. Friend the Member for Stone—that the rule of law comprises the sovereignty of Parliament and the courts, and that it is therefore wrong to describe the sovereignty of Parliament as separate from the rule of law. My view is that both are true. The sovereignty of Parliament is a separate principle, but it is on that that the most important parts of the rule of law are based—that the courts in this country implement laws passed by Parliament, and that the sovereignty of that Parliament is implicit in that principle. I fully accept that that is arguable. The key difference now is that for the first time we are seeking to set that out in statute.
The hon. and learned Member for Redcar (Vera Baird) says, as did the Lord Chancellor in the other place, that the provision that the existing constitutional role is not adversely affected is adequate. Given that part 1 of the Bill is designed to have a declaratory effect, however, we want to go one stage further and include the reference to respect and best endeavours. We feel that that takes the provision a little further and improves it.
Sir Patrick Cormack (South Staffordshire) (Con):
Is not this House at something of a disadvantage? I do not wish to make any disparaging or facetious comments about the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), who is extremely diligent and tries extremely hard, but it is a great pity that a Cabinet Minister is not dealing with this issue. Is it not also a pity that, because the Attorney-General is not a Member of this House, and the Solicitor-General, a Law Officer of the Crown who is a Member of this House, is not present, we are at a disadvantage because of the way in which the Government are treating this House in that context?
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Mr. Heald: I do not want the Lord Chancellor to end up in the House of Commons. I like the fact that he is in the House of Lords. We will debate that later. I am somewhat surprised that the Solicitor-General has not seen fit to come here today, but there are doubtless reasons for that.
Mr. Heald: I want to deal with the issues raised by my hon. Friend the Member for Stone, who seeks to define the rule of law as including the sovereignty of the Queen in Parliament and of the courts. In my view, they are indeed part of the rule of law and are at the heart of the statement of the rule of law, which is that "law rules". He also seeks to clarify the law in an area of academic contention. He wants to establish whether the UK Parliament and courts are sovereign, so that Parliament can pass an Act that effectively disapplies the European Communities Act 1972 or the Human Rights Act 1998 on a case-by-case basis, given that such Acts were passed to recognise international obligations, and expressed themselves as affecting future obligations as well as past.
Section 2(1) of the 1972 Act incorporated all existing EC legislation into UK law and
"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties".
Section 2(4) of the 1972 Act provides that past or future laws shall be construed, and shall have effect, subject to the provisions of section 2. The effect is to give primacy to EU law—as it now is—in certain areas of competence. As was explained as early as 1967, in the White Paper entitled "Legal and Constitutional Implications of UK Membership of the European Communities":
"The Community law having direct internal effect is designed to take precedence over the domestic law of the Member States. From this it follows that the legislation of the Parliament of the United Kingdom giving effect to that law would have to do so in such a way as to override existing national law so far as inconsistent with it . . . It would also follow that within the fields occupied by the Community law, Parliament would have to refrain from passing fresh legislation inconsistent with that law as for the time being in force. This would not involve any constitutional innovation. Many of our treaty obligations already impose such restraints—for example, the Charter of the United Nations".
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