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Mr. Heald: May I just finish this point?
This issue came into focus during the Factortame case, which concerned the UK's obligation under EC law to allow Spanish fishermen to fish in UK waters within prescribed quotas. The UK enacted laws in 1988 under which, to be entitled to fish UK waters, a vessel would have to register as British. Some 94 boat owners took the UK to court, claiming that those laws were incompatible with the relevant EC treaty and the common fisheries policy. Their case ultimately proved successful in the European Court, and UK law had to be changed.
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However, the interesting point came when an application for interim relief was made, in the first instance, to the UK divisional court. The court granted relief, but the decision was overturned on appeal and the Court of Appeal's ruling was upheld in the House of Lords. When the matter came before the European Court, the UK argued that Community law did not oblige or enable a national court to grant interim relief suspending the application of a national measure. The European Court ruled that where a national court would have granted interim relief to protect directly effective Community law rights but for the national measure, it must set aside the national measure. The full effectiveness of Community law would be impaired, it said, if a jurisdictional rule in the law of a member state prevented its national courts from granting interim relief.
The House of Lords was under a Community law obligation to give effect to the European Court ruling, because it was automatically brought into English law by operation of section 2(1) of the 1972 Act. Since then, many have argued that if the law changing the fishing registration arrangements had expressly disapplied the 1972 Act, it would have been incumbent on UK courts to uphold the UK law, because of the sovereignty of Parliament.
There has also been debate about the extent to which the decision on interim jurisdiction would affect situations where a different jurisdictional rule is involved, and about the extent to which the sovereignty of Parliament might be affected. It is clear that the old rule that a new Act takes precedence over an old one, and that any inconsistency is resolved by the doctrine of implied repeal, has been modified by the 1972 Act and by the Human Rights Act. Express disapplication of these provisions would be required in order to make an effective change in the law, if such a change conflicted with EU law. My hon. Friend the Member for Stone asked whether even that would be enough, and whether, if Parliament expressly disapplied the 1972 Act in respect of a particular Act, that would be effective in UK courts.
5.15 pm
Some argue that the European constitution takes this a step further, making citizens directly bound by the legal supremacy of Union institutions. My hon. Friend the Member for Stone has pursued these issues with Ministers, as has my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), and the answer to a written question reflects what they wished to establish. The Minister stated:
"The ultimate guarantee of parliamentary sovereignty lies in the power of Parliament to repeal all or any of the Acts which give effect to the EU treaties in this country. It is within Parliament's power to legislate contrary to the UK's treaty obligations. This of course includes legislation that might impact on the effective implementation of Article I-10(1)—
that is, of the proposed European constitution. The Minister's reply continued:
"The result of so doing, however, would be to place the UK in breach of its treaty obligations." —[Official Report, 15 December 2003; Vol. 415, c. 732W.]
What my hon. Friend the Member for Stone seeks to add to the Bill would, in his view, place that principle of parliamentary sovereignty firmly on the face of the Bill.
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It seems hard for the Government to deny him. The Minister may say that that is unnecessary, but that argument might apply equally to clause 1 itself, yet the Government accept the necessity of the declaratory effect.
As the then Minister for Trade and Investment, who is now the Minister for Energy and E-Commerce, said in answer to a debate initiated by my hon. Friend on 24 March 2004:
"our position has been entirely clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations"—[Official Report, Westminster Hall, 24 March 2004; Vol. 419, c. 317WH.]
He went on to cite Lord Denning, who said in the case already mentioned, Macarthy's Ltd. v. Smith, that it is always within Parliament's power to legislate contrary to the UK's treaty obligations. The Minister went on to point out that this would cause a good deal of trouble. It would certainly lead to serious discussions within the EU, but the question before us is not whether to have such an argument, but whether we are able to pass such a law, if we choose to do so, in a way that is effective in the UK courts. I believe that we are entitled to do that. Ministers seem to agree, so there is no reason not to add the words contended for by my hon. Friend.
It is right to make it clear that the issue is of concern more widely than just to UK Conservatives. In both Germany and Denmark there is the belief that certain aspects of their constitutional law take precedence over EU law. That was asserted by the German constitutional court in the Maastricht judgment in 1994. It was hoped that there would be no conflict, but the judgment asserted the German court's right to disapply an inconsistent EU law. In Poland, senior academics argue that EU law has no primacy over the country's constitution.
The most recent statement of the law in this area in the UK came from Lord Justice Laws in the so-called metric martyrs case, Thoburn v. Sunderland city council. After describing a hierarchy of statutes and identifying the European Communities Act and the Human Rights Act as "constitutional statutes", he went on to say:
That is controversial. He continued, less controversially:
"For the repeal of a constitutional Act or the abrogation of a fundamental right to be effective by statute, the Court would apply this test: is it shown that the legislature's actual—not imputed, constructive or presumed—intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible."
He stated that what is required are
My hon. Friend wishes to have parliamentary sovereignty written into the Bill, and there is no reason not to do that. He may disagree with the EU more than some— probably including me—but the provision is not about an argument with the EU. It is about the powers of Parliament and the courts, and I believe it reflects the current state of the law.
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Mr. Paul Tyler (North Cornwall) (LD): I shall be brief, as I am agog to hear how the Minister will respond to the interesting discussion between two Conservative Members, one on the Front Bench and one on the Back Bench. From what the hon. Member for North-East Hertfordshire (Mr. Heald) said, I am not clear whether he prefers his new clause or the amendment tabled by the hon. Member for Stone (Mr. Cash).
Mr. Heald: I said the new clause and the amendment were not inconsistent. I hope to have a separate Division on new clause 8 in due course.
Mr. Tyler: I understand that point, which is very interesting, but as I read it, the amendment and the new clause could not be included in the Bill together, so there is a potential conflict of interests.
I pay tribute to our briefing from the Select Committee on Constitutional Affairs on the Bill and on the amendment. I hope to see that innovation more often from Select Committees. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of that Committee, ensured that its third report of the 2004–05 Session set out an interesting and useful analysis of the way in which the Bill started its life in the House of Lords, referred to the concordat, to which much reference has been made—no doubt more will be made this evening—and included a helpful clause-by-clause comparison. The Minister may now be regretting that his colleagues in the other place decided to include clause 1, thus enabling us to have this sort of discussion. It might have been easier if it had been left out.
Nevertheless, we welcome the clause, and we want to be sure that it will be sufficient as it stands. That is surely what our business is. As a non-lawyer with some experience of the law as a recipient, I have always inclined to the view that the simpler the law can be, the less it can be misunderstood and misinterpreted. I start from the basis that the Bill as it stands, which is very simple and straightforward, is preferable to either of the alternatives that we are considering.
I understand the concern of the hon. Members for North-East Hertfordshire and for Stone about providing further definition and exploring issues of enforceability. I fear that I lost the drift—that is probably the right word—of the argument of the hon. Member for Stone. He said—I hope that I am quoting him correctly—that his amendment would ensure that there was a clear statement of the current position, but he then paused and said that he had a proviso. His comments about the proviso went on for two or three more minutes, so the clarity of the position that he was describing was rather lost. It was curious that he then stepped further into the future and sought to anticipate the effect of the European constitution, which is not even before the House yet. As I understood it, his position is that he is not in favour of it, so it was curious that he tried to anticipate it.
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