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The Government have that notion in respect of the charter of fundamental rights. It is absolutely clear from the European Scrutiny Committee report and from other eminent analyses by significant and
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interesting lawyers that there is no doubt that the charter of fundamental rights will be made applicable in the UK sooner or later by the European Court of Justice. It will catch up with the Government, just as the working time directive caught up with us despite my attempts to get my Government to understand in the 1980s that that would happen. Why was I right? It was not because of any stroke of genius, but simply because I know the ways of the ECJ.

It is interesting to remember that the Government were opposed to the provisions in the charter of fundamental rights being applied through the treaty and the protocols, and it is equally true that they have tried to put up various roadblocks. I do not think that they have succeeded. Thanks to the European Scrutiny Committee, their cover has been blown.

Philip Davies (Shipley) (Con): I fully support my hon. Friend’s amendment, but will he expand on why it is so important? Many of my constituents despise the Human Rights Act 1998, but we could repeal it. If the charter of fundamental rights is incorporated into our law, does he agree that it will be binding and that Parliament will be able to do nothing to alter its provisions?

Mr. Cash: One of the wonderful things about this House is that one can almost guarantee that another hon. Member will intervene to make the point that one was about to make. In this instance, however, I am glad that it happened. These are very important matters and, although almost no one outside is interested in our debates, there is no doubt that, in due course, people will complain bitterly about the Government’s approach. It will become the conventional wisdom that the Opposition were right and the Government wrong. We are trying to keep ahead of the curve on these matters: in the national interest, we are trying to stand up for the people of this country, and their rights.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I always listen to the hon. Gentleman carefully, as what he says is important. However, although the Opposition have made clear their unhappiness with the Government’s policy, they have not said what they would do differently or how much further they would go. It is sad that people outside are still not being told what the alternative is to Government policy, or what could happen instead.

Mr. Cash: I accept what the hon. Lady says but, if I may be allowed to say so, I do not put myself in the category of those who have not been persistent in these matters. I have made completely clear my desire to achieve clarity about the treaty.

Mike Gapes (Ilford, South) (Lab/Co-op): Will the hon. Gentleman give way?

Mr. Cash: In a moment, if the hon. Gentleman will forgive me. I was just about to mention the origin of the human rights legislation, a subject in which I know he has a great interest.

The legislation began with the universal declaration of human rights in 1949, which I have studied in depth. The distinguished Lebanese jurist Mr. Malik was the
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rapporteur, and his reports placed enormous significance on the rights of the individual. There was a huge battle between him and Mr. Topialeck and the other Soviet representatives, who were trying to put their version of the declaration.

There is no time to go into the details, but the four freedoms that were agreed did not include democracy. In contrast, I believe that democracy is the first freedom, because all else follows from it. That is what I am concerned to insist on in these debates, because democracy means that my constituents have the right to decide in a general election what sort of Government they want and what laws are applied to them.

Mike Gapes: I am grateful to the hon. Gentleman for giving way, but I seek clarification about where the Opposition stands on these matters. In earlier debates, the hon. Member for Beaconsfield (Mr. Grieve) made it clear that the Conservative party, along with the rest of the House, supports the European convention on human rights. However, the hon. Member for Shipley (Philip Davies) said in an earlier intervention that he despises the Human Rights Act 1998, which incorporated the ECHR into UK law. Will the hon. Gentleman clarify where he stands on that issue?

Mr. Cash: It is very simple: when I was shadow Attorney-General, I proposed the repeal of the 1998 Act. I am glad to be able to say that that is now my party’s policy, and I trust that it will remain so. I shall go further and say that I have the gravest reservations about how the ECHR has impinged on the essential question. I would fight to the death to defend the rights themselves—and my own father died for that cause in the last war—and the proposition that decisions about the rights enjoyed by people in this country should be made by this Parliament. However, I would also fight to the death to ensure that they are not made in the abstract, according to principles put forward and adjudicated by an unelected European Court of Justice.

Ms Patricia Hewitt (Leicester, West) (Lab): Will the hon. Gentleman confirm that it is his policy, and perhaps that of his party, that Britain should withdraw from the convention on human rights? If that is not his policy, will he confirm that repeal of the Human Rights Act would simply mean that any UK citizen who wanted to enforce the convention on human rights would have to go to the European Court of Human Rights—the situation that existed until the Human Rights Act repatriated the law so that British citizens could go to British courts to enforce their rights under the European convention? Where does the hon. Gentleman stand on those questions?

Mr. Cash: I am happy to commend the right hon. Lady to people on her side of the equation; as in the earlier debate, she put the arguments from her point of view as well as they could be put—which is not very much. I really believe that the point I have just made, and which my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) made in his speech on the motion, is very important: we operate, and have always operated, not on the basis of a written constitution or the abstract principles so beloved of—if I dare say
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it—the Socialist International and all that goes with it, but on the pragmatic assumption that there is a need to adapt and evolve according to the requirements of the time, as Edmund Burke would have said of his time. There are principles we believe in, such as human rights, freedom, democracy and liberty, but we apply them periodically according to the circumstances of the time, not according to a fixed order of the kind prescribed in the arrangements we are debating.

Bob Spink (Castle Point) (Con): Does my hon. Friend agree that the arguments put by the right hon. Member for Leicester, West (Ms Hewitt) were holed below the water line by the Labour Chairman of the European Scrutiny Committee, who said that the Government’s red lines on the charter would “leak like a sieve”?

Mr. Cash: Indeed. The red lines have already leaked like a sieve. I am reminded of the story of the hunting of the Snark; in the pursuit of an abstract and completely unknowable objective the colander leaked like a sieve and sank. That is exactly what will happen in this case.

I am concerned about the overlap between the European convention on human rights and the charter of fundamental rights as set out in article 6, which is the subject of the amendment. I referred to the article earlier in an intervention on a Minister. For all the weasel words and questions about opt-out—whether we really face legislation that we could avoid by some mechanism, trickery or cunning—and all the legal verbiage that we shall have to deal with in due course, we are discussing amendments about whether the provisions before us should apply. I am open to challenge, but I merely repeat the words in article 6(3):

That means that the European Court of Justice will apply the general principles of the Union’s law. I have heard many arguments suggesting that that will not be the case, and that the European Court of Human Rights will be able to retain its independent status and continue to operate as if the provision had not been passed, but I think that that is pure Walter Mitty.

9 pm

Mr. John Redwood (Wokingham) (Con): I am grateful to my hon. Friend for putting together and tabling so many excellent amendments, which, if we had the time to discuss them, would indeed provide us with the line-by-line scrutiny that we are being denied. Does he agree that the Government do not seem to grasp that the simple question is: “Do you wish to be governed by elected people in Parliament, whom you can sack, and from whom you can get a different answer following a general election, or do you wish to be governed by unelected people on the continent whom you cannot sack, and from whom you will never get a different answer?” Is not that the issue?

Mr. Cash: It is the issue, and the point needs to be repeated over and over. I believe that there are Members on the Labour and Liberal Democrat Benches who
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believe in that, because their own parties evolved from, or came from, the fight in the 19th century for the very rights that we are now taking away from them. It is astonishing that a vague application of general principles, through the European Court of Justice, should be allowed to be a substitute for people’s right to choose who they want to vote for, and to choose the Government under whom they want to live.

We are always being told that we have to listen to what that European Court says. Opinion 2/94 of 28 March 1996 says that accession to the ECHR would

end of story. That relates to a European Court of Justice case. There is no argument about that. As many Conservative Members have rightly said in their extremely good contributions, the European Court of Justice has the last say—and the last laugh.

Mr. Edward Davey (Kingston and Surbiton) (LD) rose—

Mr. Cash: I give way to the Liberal Democrat, because he always amuses me.

Mr. Davey: I am grateful to the hon. Gentleman. I cannot tell him how much fun I have listening to him. Has he considered the European Court of Justice’s Internationale Handelsgesellschaft ruling of 1970, in which it was decided that fundamental rights formed part of the general principles of Community law that the ECJ was obliged to uphold? That is basically exactly what is written in article 6(3).

Mr. Cash: The only reason Handelsgesellschaft, together with Costa and a series of other cases that I could quote to the hon. Gentleman, who obviously does not have all his cases in front of him, has any applicability whatever to this House and to the people of the country, including my voters, is because of sections 2 and 3 of the European Communities Act 1972. I address that issue in my new clause 6. The Government have said that they do not want the charter to apply to this country. Although they go in for a lot of weasel words about opt-outs and the rest of it, that is their bottom line, and they said as much during the Convention. The reality is that there is only one way to extract oneself from the labyrinth, or leviathan, of the European Court of Justice, from which there is no appeal, which is not elected, and which lays down principles through the acquis communautaire, with which we have to comply because of sections 2 and 3: to use the formula,

I would like to press on to other matters, and then I should like to come back to the issue of how the unity found among Conservative Members could best be achieved by others.

Rob Marris (Wolverhampton, South-West) (Lab): Will the hon. Gentleman give way?

Mr. Cash: I shall certainly give way to my friend—my hon. Friend.


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Rob Marris: I am grateful to the hon. Gentleman, who is very generous and knowledgeable, as ever. He decries the European Court of Justice for not being elected. I understand that point. Does he accept that the Judicial Committee of the House of Lords of the United Kingdom is not elected, either?

Mr. Cash: Indeed, but the difference is that there is a way of dealing with the judgments that come out of the House of Lords—enacting legislation and putting matters right. I am delighted that the hon. Gentleman walked into that bear trap. The proposition that I put to the Committee is that we should insist on the supremacy of Parliament to rectify decisions that are taken on behalf of our electors. He is the hon. Member for Wolverhampton, South-West. I doubt very much whether the debate will be reported in any of his local newspapers, which is a great pity, but if his electors knew that the hon. Member for Wolverhampton, South-West, who is the successor of my old friend Nick Budgen, would prefer to have decisions taken on their behalf by the Court of Justice rather than by themselves, he might not be in his present position very long. However, he can rest assured that, as I have said on a previous occasion, the best way to keep a secret is to make a speech in the House of Commons. The hon. Gentleman, my good friend, will therefore understand that he is trespassing on sensitive territory.

The Government were explicit and clear about the Human Rights Act 1998. The Lord Chancellor at the time made it clear in his speeches that the sovereignty of the United Kingdom was not affected by the Human Rights Act and that we could legislate inconsistently with it if we wanted to do so. Lord Hoffmann, in a famous case called Simms v. O’Brien, made it crystal clear in a House of Lords decision that if Parliament decided to do so it could in every material respect amend or repeal that Act. The Lord Chancellor of the time made that clear as well.

That is not the same as the question that applies to the European Court of Justice, which is why I was so keen to get on the record my concern that the European Court of Justice will effectively subsume—as it was expressed in the decision of the Court of Justice—the legal order of the European convention on human rights. It may apply the principles, but that is typical of the doublespeak of a kind that I came across in a very interesting book, which some people will recall: “Nineteen Eighty-Four” by George Orwell.

In the book Orwell deals with the biggest problem of all. He writes:

I started my speech by saying that I thought we were moving into virtual reality. We are going back to “Nineteen Eighty-Four” in the field of reality control. Orwell goes on:

We are dealing with the concept that there are fundamental principles that are part and parcel of the European convention on human rights, but the doublethink comes from saying, “Those are the principles, but that is not the way that they are going to be applied.” They will
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be applied another way, under the aegis of the treaty of Lisbon and the general principles of the Union’s law, as set out in article 6(3). All the abstruse debate, none of which will get into the press or be discussed in the media, is about one simple problem—that is, that the people of this country are being profoundly deceived by the idea that this Bill is innocuous and will not have a dramatic effect on their daily lives, but it will.

Mr. Peter Bone (Wellingborough) (Con): I listened to the earlier debate, in which the Government claimed that, although these proposals would make no difference at all, they were still bringing them in because they had to do both. Is that ability to hold two ideas at the same time an example of doublethink?

Mr. Cash: It is not only doublethink, but—if I may, somewhat presumptuously, add a little bit to George Orwell—double cross. That is all part of the problem. There is an assumption that, because nobody is going to listen to any of these debates and because the Benches are so empty, this does not matter. It matters very much indeed, however. The European Scrutiny Committee—on which I have the honour to sit with my hon. Friend the Member for Hertsmere (Mr. Clappison) and others who are in the Chamber tonight—has done this country a service by revealing the truth, which the Government cannot dispute. I shall be fascinated to hear how the Minister for Europe responds to the debate, because he knows that as this process progresses, and as the curve begins to come back to reality, this will catch up with the Government, just as the working time directive did under our own Government.

Mr. James Clappison (Hertsmere) (Con): My hon. Friend is making an extremely convincing case. On his point about the increasing effects of the treaty on our everyday lives, should we not see the operation of the charter and the European Court of Justice in conjunction with the increasing competence of the European Union? For example, the treaty will enable such increases to happen in the fields of judicial and home affairs and in many other areas as well. As the reach of European Union law and European Union action are increased, by the same token will not the reach of the European Court of Justice be extended, as well as its effect on people’s everyday lives?

Mr. Cash: My hon. Friend is completely right; this is an evolving dynamic. New rights are being created by these provisions, although that is denied by the Government. Every time the European Union accumulates functions, it claims that this does not involve the creation of new rights. In 1972, we agreed to go into a thing called the European Community, but the accumulation of functions since then has changed the dynamic. Similarly, if one were to have spoken about the need for democratic reform in 1848, it would not have been the same as talking about democracy in 1888, 1928 or 1948. To go back to my earlier analogy about the atom, we have now started to move into a quark-like environment in which we are actually going backwards. Our democracy is being devoured in this new virtual reality that is being created. People need to think hard about this.


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In our earlier debate, the right hon. Member for Rotherham (Mr. MacShane) was talking about the great 19th century reformers. I do not want to make a big issue of it, but it so happens that one member of my family, John Bright, fought tenaciously and successfully for the right of the man in the street to have the vote. Every single person in the country would support that now, but there was huge resistance to it in those days. Those rights were established within the then Liberal party—not this completely vacuous, insipid abstraction called the Liberal Democrat party today—which, in those days, actually fought for people’s rights. People now talk about rights but they do not act to achieve them. That is the problem.

Rob Marris: I suggest that the hon. Gentleman is demonstrating the doublethink that he earlier decried, and I will explain that. He quite rightly said that democracy evolves over time, and he gave the examples of 1848 and the achievement of universal adult male suffrage. The achievement of the vote for women happened in my mother’s lifetime. However, he then said that he wanted to wind democracy back to 31 December 1971. He is absolutely right to say that it is an evolving dynamic. Democracy changes, and the European Court of Justice is subject to a democratic process, just as the Judicial Committee of the House of Lords is. It is simply a different democratic process. These things are evolving.


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