---

Keith Vaz: Does the hon. Gentleman agree that the phrase "best endeavours" in new clause 8 would weaken the effect of clause 1(b)?
 
31 Jan 2005 : Column 605
 

Mr. Tyler: I understand that point. The hon. Member for Stone was asked about the enforcement of the provision, given the fact that the Cabinet and its Committees sit in private. How could such provision ever be enforced? I think that it could be interpreted as weakening the Bill as it stands.

I am afraid that I am very much with the hon. and learned Member for Redcar (Vera Baird), in that I do not understand the necessity of the further definition. If anything, it would dilute and reduce the impact of clause 1 as it stands. The most interesting point about the argument of the hon. Member for North-East Hertfordshire is that he is obviously edging towards a complete and comprehensive written constitution. That happens to be the position of my right hon. Friend the Member for Berwick-upon-Tweed, myself and our party. As far as I am aware, such a position does not represent the views of the Conservative party. Surely, a constitution is needed precisely to define and codify to avoid overlap, lacunae and turf wars. That is, after all, the basic argument for a European constitution, and it will be interesting to hear whether that argument will be put from the Conservative Front Bench.

Mr. Cash: Will the hon. Gentleman give way?

Mr. Tyler: I am just about to conclude.

My point for the Minister is that I find it difficult to understand what would be added if the amendment or the new clause were included in the Bill, when as I see it, we already have a very clear statement of the rule of law. It seems to me that that is all we should be seeking to achieve.

Mr. Redwood : I support my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) in saying that the sovereignty of Parliament should be clearly recognised as an important principle in the Bill and in clause 1. I do not see how the Government can, in fairness, reject that plea, although I am sure that they will find ways of doing so that are unfair. In fairness, if they think that their Bill requires an assertion that the Lord Chancellor must uphold and work for the rule of law, it is surely important to recognise the fundamental principle of our legal system that all statute law emanates from the power of the people expressed through their Parliament.

As my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) reminded us, power ultimately comes from the people, who entrust it for a period of years to their elected representatives until it returns to the people when a new Parliament has to be elected. It used to be a fundamental principle of our excellent British constitution, as recorded in a variety of documents over the years, that no Parliament could bind its successors. That principle is crucial if the people are to have power over their legislators and to be able to choose different legislators at the date of dissolution and subsequent election if the previous legislators have not suited their will and purposes. That is why some of us have been worried by the issue that bedevilled the early part of the discussion on this big Bill: whether European law can now effectively bind future Parliaments, and whether treaty law can do what statute law cannot do and thwart the will of the British people should they change their minds about things done in their name by previous Parliaments through the European Union.
 
31 Jan 2005 : Column 606
 

Therefore, it is welcome to discover, as my hon. Friend the Member for North-East Hertfordshire pointed out with some extremely well chosen quotations, that the two Front Benches—the official Opposition and the Government—are united in upholding the view that, ultimately, the sovereignty of Parliament is still intact, that the powers of the European Union emanate from the European Communities Act 1972, and that what Parliament can create it can amend or remove. There is strong disagreement in our country about whether it would ever be wise or desirable to test that point by passing suitable legislation in this House to amend the 1972 Act, but it is welcome to know that the main interests in the House agree that that can be done legally under our system, in which the Queen in Parliament is sovereign. It would therefore be welcome if that principle were written clearly into this grand, declaratory Bill, which begins with the wide-ranging and high-flown clause that we are debating.

Another issue to which the Minister should respond is how far the request for, or requirement on, the Lord Chancellor goes to observe the rule of law as we understand and define it. That would not be difficult were the Lord Chancellor a happy inheritor of the tradition of our rule of law and common law, but it would be less comfortable for a Lord Chancellor who was a moderniser and reformer and who wanted to make fundamental changes in the way in which the rule of law is understood and enforced. For example, does the Minister believe that any Lord Chancellor could take any action that he or she liked as regards how future jury trials should be conducted, or whether juries should be involved? Under clause 1, can any Lord Chancellor take whatever view he or she wants to take on imprisonment without trial or without identifying an offence or charge, or does there come a point at which the Lord Chancellor is acting beyond his or her remit because the rule of law is defined by our common law and traditions, and by the many fine words and judgments that have gone before?

The debate is interesting and apposite and I look forward to assurances from the Minister that the intention is to create limits on how far a Lord Chancellor can go in wrecking, destroying or undermining the liberties and rights of subjects under the common law.

Mr. Cash: Does my right hon. Friend acknowledge that had the Merchant Shipping Act 1988, which gave rise to the difficult decision in the Factortame case, started with the words, "Notwithstanding the European Communities Act 1972", as I suggested back in those days, we would not have got ourselves into this judicial mess as regards our internal constitutional position? Will my right hon. Friend note that, on 12 January, Professor Alan Dashwood stated that in the context of a Bill that began with the words, "Notwithstanding the European Communities Act 1972", whether

"there has been a shift of ground law or not with an unwritten constitution like we have, you can only wait and see how the judges would react to that Act of Parliament."

That is matter of concern, and it is why I have been pressing the point. Does he agree that we must pursue that?
 
31 Jan 2005 : Column 607
 

5.30 pm

Mr. Redwood: I have already said that I fully agree with my hon. Friend and also my hon. Friend the Member for North-East Hertfordshire that it is a good idea to identify the sovereignty of Parliament as central in the first clause of such an important constitutional Bill. Should some future Parliament contain a majority that wished, for example, to disapply some Community law or change Community arrangements without a new treaty having been negotiated, it would be a prudent precaution to begin the legislation with an express repeal or amendment of the part of the 1972 Act that Parliament wished to alter. I am sure that the judges of our country would understand, under the rule of the sovereignty of Parliament, that it was good law that should be enforced.

Vera Baird : If the right hon. Gentleman wants to guarantee that the Lord Chancellor supports the sovereignty of Parliament above all else, why does he support new clause 8, which does not give the Lord Chancellor a duty to do that? It separates the rule of law from the sovereignty of Parliament and gives him a duty to support only the second and not the first, whereas clause 1 clearly gives the Lord Chancellor a duty to support both.

Mr. Redwood: Clause 1 does not expressly state that the sovereignty of Parliament is crucial. As I understand new clause 8, the principle of the sovereignty of Parliament would be above all others. Clause 1, as amended, would therefore bind not only the Lord Chancellor, but everyone else in the judicial process. That would be welcome. It is a suitable point at which to sit down in the hope that the Under-Secretary will rise soon to reassure us on those matters.

Mr. A. J. Beith (Berwick-upon-Tweed) (LD): The remarks of my hon. Friend the Member for North Cornwall (Mr. Tyler) about the Select Committee report were kind and much appreciated. I hope that it proves useful to hon. Members in identifying the issues that have not yet been resolved.

Considerable changes have been made to the Bill, many of which respond to issues that the Committee raised and were subsequently raised in the Lords. I am pleased about that, but the Bill has never appeared to me either to make, or purport to make, changes to the sovereignty of Parliament. Indeed, it does not purport to make changes in the rule of law. A question therefore arises about the necessity of the clause and any amendments to it.

I welcome clause 1 because it became clear in Committee and in the other place that there was much concern among the judiciary and more widely that the future Secretary of State for Constitutional Affairs—as he was then to be—would not have or recognise the same duty to assert the rule of law in Cabinet discussions as was previously assumed to be the case. That was based on a rather rosy view of what happened in previous Cabinets, especially if we look back to some earlier, very political Lord Chancellors.

More recently, we have had senior Lord Chancellors of different parties, of the sort that the Committee hoped we would get in future—people who had reached the
 
31 Jan 2005 : Column 608
 
end of their political career, were not looking for further office and did not have ambitions for other Cabinet posts. We believed that a model had been developed in which the Lord Chancellor upheld the rule of law. Perhaps an even more pressing reason for our support for that model was that the moment that the Lord Chancellor stopped sitting as a judge, it became inappropriate for him to take the judicial oath. Alternative provision was eventually included in the Bill, but the disappearance of his swearing the judicial oath was viewed as yet another way in which his commitment to the rule of law might be undermined.

Even in recent times, one can make speculative comparisons about how far different Lord Chancellors would impress on their colleagues the importance of the rule of law. I remember Lord Irvine publicly dressing down a Minister on the independence of the judiciary, but I challenged the current Lord Chancellor because I could not find an example of his doing the same. I made suggestions about when he might have done so, for example, when the then Home Secretary, addressing the Police Federation, said, "We want only judges who help us to do our job." That obviously seemed to him to be an entirely innocent statement, but to me and others it seemed to represent a contradiction of the principle that judges are there to reinforce the rule of law, and not to do what happens to be convenient for the Government. The presence of this provision in the Bill is therefore welcome, as it addresses precisely those concerns.

---