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Mr. Cash: Buried in this debate are some pretty important questions, as my hon. Friend the Member for Hexham (Mr. Atkinson) has just pointed out. It is about the abolition of the traditional quality of the office of Lord Chancellor. In deliberations in Cabinet, certainly until the present Cabinet, the Lord Chancellor by any standards carried weight and authority second only to and possibly exceeding that of the Prime Minister when it came to matters of constitution including constitutional reform, which is the subject of this Bill. After all, the role of the Lord Chancellor, excluding his judicial functions, is to maintain the security of the constitution of this country, which is what this Bill is meant to be all about.
So, having regard to the exchanges that we have just had on the Lord Chancellor's oath, it is something of a surprise that the proposed oath does not emphasise the responsibility to maintain the constitution of this land, including the supremacy of Parliament, and to protect it against invasions from international treaties—European treaties and the like. Article 1.6 of the European constitutional treaty—I do not know whether the Lord Chancellor had anything to say on the subject—makes it clear that the constitution has primacy over the laws of the member states in relation to the competences conferred upon it. That brings us straight to the function of the Lord Chancellor in relation to the European Court of Justice. The Court has increased competences. Article 1.20 makes that clear. The role of the Lord Chancellor in Cabinet ought to be to give advice to the Prime Minister on the impact of the European constitutional treaty on the constitution of this country, including the impact on the making of laws in this country. I do not know whether the present Lord Chancellor has done so; I know that Lord Kilmuir did.
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If there is inconsistency between the laws prescribed by this Parliament and the laws that emanate from the European Union, the rule of primacy under section 2 of the European Communities Act means that our laws would be overridden. In the context of the constitution, which ought to be a central question for this Constitutional Reform Bill, I would have expected the Lord Chancellor to point out that the European constitution in relation to the declaration made in respect of article 1.6 on the role of the European Court of Justice says that the case law relating to primacy shall be in accordance with the decisions of the Court of Justice. The European Court asserted in the Costa v. Enel case and the Simmenthal case and others that the constitution and the laws of the European Union override our constitution and all treaties and obligations.
So we have a serious problem on our hands. I do not know why the oath does not include a reference to maintenance of the constitution as a prime function of the Lord Chancellor. It could be said that all this is wrapped up in the expression "the rule of law". We debated that earlier. I am glad to say that the Opposition and the Conservative party as a whole supported my Back-Bench amendment on what the rule of law meant. The amendment to clause 1 sought to include our Parliament and asserted that the rule of law included ensuring that the supremacy of Parliament was maintained. I wonder whether that is understood by the Minister, and whether he is prepared to concede that point in respect of the words "the rule of law".
The Minister wrote to me the other day on the subject and said that he did not think that in the context of the Bill it was necessary to go into all these questions. Well, I am going into them now, and I would like an answer from the Minister. He does not think that it matters. Other people in the Committee and in the country at large are extremely concerned to know whether the rule of law includes maintaining the supremacy of Parliament.
If the Minister considers the body of law that relates to the legislative supremacy of Parliament, which I do not need to go into in detail, thank heavens, today, it is abundantly clear that this Parliament has to be maintained as the legislative body for the nation, over and above prerogative and international treaties. That is what the rule of law means. That is what the Lord Chancellor is being required to swear he will maintain. I want to hear the Minister, in the light of his letter to me, assert that, and confirm that when the Lord Chancellor swears that oath regarding the rule of law, he is also swearing to maintain the supremacy of Parliament. It is an extremely simple point and I want to hear it from the Minister's lips. If he is not prepared to put it in writing, perhaps he will be a little more forthcoming on the Floor of the Committee. It is a central issue. It came up today in Foreign Office questions. It is a new primacy, a new treaty and a new doctrine that is being applied under the aegis of the European Communities Act 1972. I want a simple answer. Will the Lord Chancellor, when swearing the oath, be swearing as a matter of duty and perjury that he will uphold the supremacy of Parliament?
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Some people may say that this is just meandering round words, words, words. In the exchange with Alice in "Through the Looking Glass", we read that a word
This is not just a jokey matter to be discussed flippantly in Committee. Over and over again we have tried to get a clear statement from the Government with respect to where we are going under the European Union Bill. We know that they are not disposed to tell us when the next stage will take place, but it is incumbent—
The Chairman of Ways and Means (Sir Alan Haselhurst): Order. I am beginning to think that I have heard this before in another context. I am therefore bound, after 10 minutes, to remind the hon. Gentleman that we are choosing between the words proposed in the amendment and those that are in the Bill. His remarks should be confined to that, and not cover the wider issue, about which I know he feels the most enormous concern. We must concentrate on the words before us.
Mr. Cash: Indeed, I entirely agree, Sir Alan, that we should concentrate on the words contained in the oath. With respect to the rule of law, I have made my point on that and I do not need to repeat it. But I want an answer. That is why I insist relentlessly on pressing the matter on the Minister.
I move on to the next question—the wording that the Government have chosen to defend the independence of the judiciary. Before you came into the Chamber, Sir Alan, you may have observed that I raised the question in the context of clause 4, because the oath cannot be separated from the functions that are being conferred on the Lord Chancellor in part 1. The expression "the judiciary" is defined. We all thought we knew what the judiciary was, but now we find that it relates to a range of jurisdictional functions set out in clause 4(7). That cannot be separated from the oath because the Bill defines what the judiciary is.
(a)
That includes the International Criminal Court and the International Court of Justice, which is specifically mentioned in subsection (8), which states that
"'international court' means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—
The Chairman:
Order. The hon. Gentleman does not need to read out the whole clause. The Committee has already considered clause 4. It now stands part of the Bill, so a mere reference would be adequate.
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Mr. Cash: I understand, Sir Alan, although we have a fair amount of time to consider these matters, which we were denied yesterday. The definition of "international court" also includes functions in pursuance of
which anyone would regard as rather curious in the context of a judiciary whose independence, as a matter of duty and of oath, must be sustained by the Lord Chancellor.
Let us put that in the context of what judicial independence means. I have set the framework and I am now leading up to that crucial question. In 1950 Lord Denning, no less, stated in a seminal lecture:
"No member of the Government, no member of Parliament, and no official of any Government department has any right whatever to direct or influence or to interfere with the decisions of any of the judges."
That is what is meant by the definition in the Bill. The oath refers to the upholding of the independence of the judiciary.
This is not a light matter. Apparently, in 1994, a serious problem is supposed to have arisen when the president of the Employment Appeal Tribunal and the then Lord Chancellor fell out over the question of judicial independence.
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