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However, all that case law, every one of those burdens and every aspect of that European legislation depend on one thing only—the legislative supremacy of this House in passing the European Communities Act . As a consequence, it is open to our judiciary—as in the different context of the Human Rights Act 1998—to interpret and apply that law. That is solely, exclusively and entirely because of the European Communities Act passed by this House. If this House decides that it wishes to make changes, by whatever procedure, it is incumbent on the judiciary to give effect to that subsequent inconsistent law, provided it is express and unambiguous. That case law is laid down unequivocally
by Lord Denning in the case of McCarthy’s v. Smith, by Lord Justice Laws in the case of the metric martyrs and by Lord Steyn himself in a lecture in 1996.
There are so many misunderstandings about the role of the judiciary in these matters. So much confusion is created by invoking the principles of Community law when we are dealing with, and must continue to insist on, the principles of United Kingdom constitutional law. From the earliest days of the 17th century, in a constant movement towards the establishment of the democratic Parliament that we have today, that has been dependent on the fact that we legislate and the judges obey. I do not mean that in a derogatory sense; it is what the judges say of their own function.
I mentioned Lord Steyn. He is well known as a distinguished lawyer, with—I would say—some influence, and with strong views about the European Community. We understand that he is enthusiastic about it. In a lecture that he gave in 1996, however, he made his opinion abundantly clear. He said
“in countless decisions the courts have declared the unqualified supremacy of Parliament. There are no exceptions.”
Mr. Heath: It is always worth listening carefully to the hon. Gentleman. I agree entirely with his point about legislative supremacy in the context of the European Communities Act 1972, and, as he knows, I agree largely with what he says about the proper application of subsidiarity and excessive regulation. However, he has posed a conundrum to both the Liberal Democrats and his own Front Benchers, who in Committee supported new clause 7, which excluded the European Communities Act from consideration of the procedural device that the Government propose. We agreed that it was not a matter that should undergo the fast-track procedure. Now the hon. Gentleman is inviting us to place it squarely and centrally in the fast-track procedure. As I think he will recognise, that poses a great difficulty both to us and to the hon. Member for North-East Hertfordshire (Mr. Heald).
Mr. Cash: I hear what the hon. Gentleman says, but what I am trying to do is to invoke T.S. Eliot’s famous observation that humankind finds it very difficult to deal with reality.
Mr. Heald: I think my hon. Friend will agree that using the order-making power to amend the European Communities Act 1972 might be a bit strong, even for him. Is not his point that, if a procedure allows us to change the law in this country and if there is a principle of sovereignty, it is open to our Parliament to use that procedure to change laws that affect our European Union treaty obligations? Of course, whether that is a good idea is a different question, and it is possible that my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) and I would not make the same judgment as my hon. Friend. In terms of the sovereignty of Parliament, though, it must be right for us to be able to change laws that break EU treaty obligations. It is just that it is probably not a very good idea.
Mr. Cash: My hon. Friend has put the case well from his point of view. Looking at the complexion of this Government, I should not have thought that there was a cat in hell’s chance of their using the fast-track procedure in any way to affect the European
legislation, but the case that I have made in respect of the burden on business is unanswerable, as is my observation that it is not included in the package. I do not expect the Government to take it up, but my hon. Friend is right to point out that if we are to be correct and accurate in regard to our constitutional position in UK law, and in the context of the legislative supremacy of Parliament, it is incumbent on us to recognise the issues and to recognise that, through a process of absorption, osmosis and camouflage, they have been overtaken. People have come to believe that everything is set in concrete. It is not, and that is part of the point of my new clause.
Mr. Shepherd: My hon. Friend is right, especially in one respect. The new clause demonstrates clearly to those who are persuaded by the reasons given for membership of the European Communities that they can be changed and irrevocably broken by a statutory instrument. That is what is wrong with the Bill.
Mr. Cash: Indeed. It is undesirable that fast-track procedures should be regarded as the best way to go about things—we have been through the argument already, and we may well vote against that proposal on Third Reading—but it is important to establish and reassert a principle. We have not had many opportunities to do that in the context of a substantive Government Bill to which amendments can be tabled for purposes of clarity.
Let me say this to my right hon. and learned Friend the Member for Rushcliffe, a distinguished chairman of the Conservative party’s democracy commission. It would not be good enough to assert—if he were to do so—that what I propose is not possible through the legislative supremacy of the House of Commons. He cannot avoid the fact that what I am saying is good constitutional law of the United Kingdom.
Mr. Kenneth Clarke: My hon. Friend is a long-standing opponent of section 2, in particular, of the European Communities Act. Surely it is open to any Government to introduce legislation to repeal that section, if they so wish. My hon. Friend and I would disagree on the desirability of such a measure, but a proper way of dealing with the issue would be to present primary legislation—which, I would hope, would be debated at the same length as the original legislation—on the Floor of the House of Commons. My hon. Friend is a great parliamentarian, and I cannot understand why he of all people should suggest that no more than the Bill and a statutory instrument should be employed to enact a drastic measure on which he and I will not reach speedy agreement.
Mr. Cash: My right hon. and learned Friend has made a political point. I have listened to what he has said, as I have on many other occasions.
Mr. David Heathcoat-Amory (Wells) (Con): For the avoidance of doubt, will my hon. Friend confirm that new clause 17 could not be used to amend or repeal the 1972 Act, but could be used to make explicit that Parliament can change statutes notwithstanding the provisions of the Act? That is a rather unexceptional
constitutional convention under which we all live. My hon. Friend’s new clause is thus a modest measure that will certainly not lead to the vast constitutional revolution posited by my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke).
Mr. Cash: My right hon. Friend has put it very well. The principle embodied in new clause 17 is the vital principle of preserving and reasserting, and the Bill has given me the opportunity to do that. Notwithstanding the concerns of my right hon. and learned Friend the Member for Rushcliffe, which are primarily political, and those of the hon. Member for Cambridge, which appear to be primarily diplomatic, I insist on my point.
Mr. Cash: I see that the hon. Gentleman wishes to intrude again.
David Howarth: I merely wish to ask the hon. Gentleman what aspect of new clause 19 would prevent the repeal of the 1972 Act.
Mr. Cash: The answer is simple. Without primary legislation, which new clause 17 would constitute—
David Howarth: I was talking about new clause 19.
Mr. Cash: I am referring to new clause 17. If it were incorporated in the Bill, it would confer authority—on the basis of principles that I need not repeat—enabling the legislation to have the effect that I want: that is, where necessary to override the 1972 Act to reduce the burdens on business. I think that that point is well catered for.
Edward Miliband: I hesitate to intervene in this debate among what one might call the European trainspotters, but if I understand the hon. Gentleman correctly, if the new clause were to be inserted, we would be able to override the principles of the 1972 Act. What does he think would follow in terms of our relationship with the European Union?
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Mr. Cash: Predictably, there would be enforcement proceedings, infraction proceedings and various other actions. Until very recently, my party had precisely such a policy in respect of the common fisheries policy, except that we had not spelled out the legal mechanism for doing that. We are perfectly happy to accept that, where matters of vital national interest are concerned, Europe does not necessarily get it right. In fact, the low growth and high unemployment, the riots in France, the problems implementing economic reforms that Angela Merkel is experiencing, the difficulties that Mr. de Villepin experienced, and so on—the list is endless—are all indications of the fact that the Lisbon agenda does not work—
Mr. Deputy Speaker (Sir Michael Lord): Order. This is a wide-ranging debate, but the hon. Gentleman is starting to range rather too wide.
Mr. Cash: I am grateful to you, Mr. Deputy Speaker. I give way to the hon. Member for Edmonton (Mr. Love).
Mr. Andrew Love (Edmonton) (Lab/Co-op): I am forced to intervene in the hon. Gentleman’s long oration. Has he discussed new clause 17 with his Front Benchers, and are they minded to support it should it be pressed to a Division?
Mr. Cash: Obviously, the hon. Gentleman is a late entrant to the debate. My hon. Friend the Member for North-East Hertfordshire said that hey will support new clause 17. I hope that that helps the hon. Gentleman.
The basis of legislative supremacy is that the courts obey Acts of Parliament. You are right, Mr. Deputy Speaker, to bring me back to that point, because that is the essential point that must be understood.
“The rule of judicial obedience is in one sense a rule of common law...it is the ultimate political fact upon which the whole system of legislation hangs.”
Those are the words of Sir William Wade, one of the great constitutional authorities. I mentioned the judgments of Mr. Justice Edward Coke, which, relying on the sovereignty of Parliament, stated that the courts could void Acts of Parliament. We now have democracy, votes and general elections but, unfortunately, in the context of the Human Rights Act 1998, which I shall not dwell on, and the European Communities Act 1972, the judiciary have been trying to push the boundaries beyond the established legislative supremacy of Parliament, by drawing down a greater degree of supranationalism. They have even been saying that treaties have a special status. Neither treaties nor convention can stand in the way of legislation—of Acts of Parliament. All the judicial decisions given in the past several centuries have reasserted that main proposition. Ultimately, the judiciary derive their judicial authority from Parliament and, I should say, from the source of their payments, salaries and allowances.
I mentioned the comments of Lord Steyn, who is by no means a person with whom one would easily disagree. In the case of Manuel v. Attorney-General, Sir Robert Megarry stated unequivocally that
“the duty of the court is to obey and apply every Act of Parliament”
What is required to deal with the problem facing us of burdens of business is a clear and unambiguous statement in the Bill, for which the appropriate form of words is:
“notwithstanding the European Communities Act 1972”
Even the case of Factortame, which dealt with the Merchant Shipping Act 1988, ultimately depended on the passing of the European Communities Act 1972. In the words of Lord Bridge, Parliament’s surrender of sovereignty in the 1972 Act was voluntary. What has been given can be taken away; that is the principle. It does not necessarily follow from my new clause that there would be a political decision and a vote in the House of Commons to do that, although I believe that we have gone far too far in European integration and
that we need a substantial and radical retrenchment. Even the judgment of Lord Hope in the recent case of Jackson and others v. Attorney-General ultimately depends on the 1972 Act. Mr. Justice Laws referred to “constitutional statutes”, which were purported to be given an additional status over and above ordinary Acts of Parliament. In the context of the European legislation, they themselves would depend on the fact that Parliament had passed the necessary legislation.
The Parliamentary Secretary, Cabinet Office, the hon. Member for Wolverhampton, South-East (Mr. McFadden), has it in mind that some gold-plating can be removed. However, where that gold-plating ultimately depends on the fundamental and intrinsic nature of the European directive or regulation on which it is based, merely removing it and all the Cabinet Office mechanisms that are employed, including regulatory impact assessments, transposition notes, and so on—complicated stuff that nobody in the small business community really knows exists—will be of no value at all if the fundamental issue is not tackled. In the democracy in which we live, the United Kingdom Parliament acquires its authority from the voters at general elections, which decide the Government. The hon. Member for Stoke-on-Trent, Central (Mark Fisher) is correct: Parliament is first. The bottom line is that we have the right to be able to decide what legislation is to be passed.
There are those, such as my right hon. and learned Friend the Member for Rushcliffe, who—uncritically, I think—are willing to accept pretty well everything that comes from the European Union and do not want it to be amended or repealed. He would argue strongly, as he has today, that the mechanism that I propose is not to his liking. The reality is that we must stipulate that this House is the sovereign place where the democratic wishes of the people of this country are implemented. If it is necessary to override supranational legislation, whether the Human Rights Act or the European Communities Act, it is our right and our duty to do so.
The legislative supremacy of this House is what the Bill is all about and it is the reason I tabled new clause 17. I believe that, in the context of the burdens of business and deregulation, this debate has been necessary. I am extremely glad that my hon. Friends will go into the Lobby to support the new clause.
David Howarth: In one of the more arcane Committee debates, it was discovered that the words “local Act” included Acts of Parliament relating to universities, so as new clause 19 still includes those words I declare my interest as a fellow of a Cambridge college and a university reader.
The hon. Member for Stone (Mr. Cash) is right: in the end, it comes down to a political, diplomatic choice. It is perfectly open to the House to repeal section 2 of the European Communities Act 1972 either in whole or in part, and to do whatever it wants with our relationship with Europe. I would not deny any part of his speech when he was making those remarks, but the question is whether those actions would be wise and on that matter he and I might disagree.
I agree with my hon. Friend the Member for Somerton and Frome (Mr. Heath) that the best amendment in the group is Government amendment No. 10, which removes
clause 1—a very good thing to remove. It is an extraordinary provision that allowed the Government to change any primary legislation at will. The theory that the Government appear to be following, and which they appeared to be following last Wednesday night when we were discussing House of Lords reform, is that by their mere existence as the Government they are entitled to whatever legislation they want. But that is not the constitutional theory on which this country is based. Parliament legislates, not the Government.
Another point that we tried to make in Committee, and a mistake into which the Minister appeared to be slipping today, is that it is not the motives of Ministers, or those of the Government that matter, but what the Bill actually says. In that regard, new clause 19 is still defective in two ways. The first is that there is still no control over the subject matter to which the Bill applies. As the hon. Member for Stoke-on-Trent, Central (Mark Fisher) said, under proposed subsection (6) the provision applies, in principle, to all legislation. In principle, the abolition of jury trial, for example, can be achieved under the Bill by statutory instrument. If new clause 26, which prevents the use of the Bill for amendments to the measure itself and to the Human Rights Act 1998, were passed, even that would not protect jury trial because the Human Rights Act does not in terms, or by implication, protect jury trial. That aspect of our legal tradition is not protected by the European convention on human rights or by our incorporation of it into our law.
The right hon. and learned Member for Rushcliffe (Mr. Clarke) said that outlandish possibilities were being discussed, but the erosion of the right to trial by jury by the Labour Government is far from an outlandish possibility. Indeed, every time the Prime Minister talks about changing the balance in the criminal justice system he means measures of that sort.
A second reason why control over subject matter is important is that it would still be possible under new clause 19 to institute major constitutional change by statutory instrument as long as a Minister considered that it would relieve or reduce burdens. That might include abrogation of section 2 of the European Communities Act and would certainly include matters such as the radical reform of local government, which should, in my view, be achieved only by primary legislation. Although the new clause is welcome, it needs to go much further in a number of ways. In a later group, we shall discuss new clause 16, which deals directly with subject matter, but there are other problems with the measure.
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The second major problem is the subjective test. The new clause, like the original provision, leaves the decision about whether use of the Bill is appropriate in the hands of the Minister—if the Minister considers that the conditions for its use are fulfilled. The Minister might consider that jury trial—to take that example again—constitutes an administrative or financial burden. It is right that the new clause excludes from the scope of the Bill burdens on Ministers and Departments, but a Minister could easily consider that jury trial imposed burdens on employers, by removing employees from their workplace for the duration of a trial.
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