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This is a live issue. The measure has been quoted in litigation in the past decade. In fact, it is the bedrock on which parliamentary independence rests. My hon. Friend has thus made an important contribution to the debate by tabling the new clause.

Mr. Cash: My hon. and learned Friend might care to refer to the ruling by the former Speaker, Baroness Boothroyd, in respect of litigation on the Maastricht treaty. She made the ruling—and the courts backed off—when there was an attempt to challenge the ratification, as compared with the legality of what was being discussed at that time.

Mr. Grieve: My hon. Friend is right. His memory and knowledge of these matters goes back a long way. It is correct that that was one aspect of an assertion of the rights under article IX of the Bill of Rights. Of course, what is sauce for the goose is sauce for the gander, and it is perfectly possible to envisage circumstances in which that might happen in another context in relation to the European Union. New clause 8 is important. I hope that the Minister will give it careful consideration and I wait to hear what he has to say.

New clause 9 relates to the supremacy of Parliament. Again, the Minister must address that important issue, which is tied in with the other amendments that we are considering.

I do not want to take up more of the Committee’s time, but I come back to amendment No. 13 and repeat my challenge to the Minister and Labour Members who appear to think that we are dealing with abstract issues about which we should not bother. I do not think that they are abstract. Will they please tell me what is wrong with the amendment and why including it in the Bill would do any harm to the Government’s intentions?

Michael Connarty: The record of the European Scrutiny Committee makes it clear that we were exercised by this challenge, especially as it relates to the Bill of Rights and the word “shall”. We believed that whoever drafted the English version could translate the French so that its effect was compulsive in the sense that, as the hon. and learned Member for Beaconsfield (Mr. Grieve) said, it was a description of the reality of what the treaty would create. It may be that it was a throwback to the treaty for a constitution for the European Union—people keep referring to the original treaty as the constitution, but it was a treaty for a constitution—and was seen in that light by those who drafted it two or three years ago; and in the redrafting, some people may have kept that interpretation. We were slightly concerned that if we left in “shall” and did
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not insert “may”, it would not be clear that there was no compulsion on Parliaments.

In the light of Ministers’ evidence to us, especially the Foreign Secretary, we accepted that Ministers felt that they had removed the offending element of compulsion by removing the word “shall”. However, as we said in our third and final report of the last Session, we were disappointed about not getting “may” in. That would have clarified the matter beyond doubt. Yesterday, in an intervention on the Minister for Europe, I related the fact that in a recent meeting of the Chairmen of European Scrutiny Committees throughout Europe, a Chairman from another country said “shall” and, when asked about it later, said, “But they must—it’s in the treaty.”

Fundamentally, that is because some Governments and some Parliaments see themselves as giving up their role to the European dimension. Having taken evidence from Ministers and discussed the matter both formally and informally with the Minister for Europe and Ministers in all the Departments representing this country, I do not believe that we have ever given up that position to Europe. I believe that Ministers will fight the corner, but it will have to be fought, because it is not clear that the other side has given up its position, either.

Mr. Grieve: I have read the hon. Gentleman’s intervention yesterday. I was rather struck that the Minister did not answer his question, saying simply:

However, he did not go on to explain why the Government had done so. That is what I hope the Minister will explain this afternoon.

Michael Connarty: That is a helpful intervention. I have every confidence, because I do not only speak in this Chamber; I follow these matters up with Ministers—that is what Back Benchers do. The Minister is aware that some people in other countries see themselves as more federalist and are more willing to submit the idea that the phrase—even in English—“Parliaments contribute to” is a description of how they must act at all times, whereas we do not, this Minister does not, and, I believe, our Government do not.

In relation to “shall”, we were certainly worried about the Bill of Rights. On how we should proceed now, we must accept that, in the negotiation procedure that created the treaty, there was some room for Euro-fudge. What we must be is “UK-firm” against the Euro-fudge, or we will end up in a position where, in practice, other Governments and other Parliaments will expect us to act as though we were compelled. That is why I continue to raise the matter, not only on behalf of my Committee members, but on behalf of Parliament. We want our Ministers to be firm. The Opposition Front Benchers want to hear how they will be firm. If they are not firm enough, I hope and believe that my Committee and this House will remain determined to put some backbone into the negotiations.

Mr. Heath: May I put to the hon. Gentleman an alternative construction, which I have not heard mentioned, that relates to the issue of subsidiarity?
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Had the wording that national Parliaments “shall” ensure subsidiarity been retained, might it not have been to exclude the possibility of an Executive ensuring subsidiarity—in other words, conferring an exclusive role on Parliament? I believe that to be the intention of the legislation. The fact that it has been weakened by the removal of “shall” in this sense does not place an obligation on Parliament but removes a responsibility that we should enjoy. The House should ensure subsidiarity, not Members on the Treasury Bench.

Michael Connarty: I think that the hon. Gentleman is misinterpreting it. The answer to that was given by my right hon. Friend the Member for Leicester, West (Ms Hewitt). There are sections that say that Parliaments “may” respond to the subsidiarity issue, and that is the correct interpretation. Having dealt during the past nine years with the Commission and the machinery of bureaucracy, I do not have the warm opinion of them that the hon. Gentleman has. When they say “shall”, they mean to compel, not to empower; I can assure him of that.

I do not think that the amendments are necessary. The debate is necessary, because it gives the Government a chance to tell us how they will face the challenge if anyone comes to interpret the treaty in the way that it might be interpreted, which would be detrimental to the rights of Parliament and the people of this country.

Mr. Peter Lilley (Hitchin and Harpenden) (Con): Surely the issue is not what the hon. Gentleman thinks, what the Government think or whether the Government are robust, but what the treaty actually means—namely, what the European Court of Justice interprets it to mean. That casts a shadow forward. If a Cabinet receives advice from the Law Officers that a provision means a certain thing, it is inconceivable that the Cabinet will do otherwise; I can assure him of that from my own experience. The issue need not even get to the Court before that strict legal interpretation carries effect, whatever the Government may wish.

Michael Connarty: On the question of the role of the European Court of Justice and any Cabinet’s interpretation of what it says, presumably the Cabinet would be at the European Court of Justice fighting our corner, not just waiting passively for a judgment.

I am honest about this. I believe that our team went to challenge “shall” and get “may”, because they knew that that would win praise from anyone who was being critical. We were perhaps seen as being critical when we were not trying to be; we were just trying to be honest. I think that our team won “shall” and then tried for “may” and did not get it—in other words, those with whom they were negotiating would not give them two victories, saying, “You’ve got one; we’re not going to give up on the other, so you have to take this.” I know that the right hon. Gentleman has been there at the sort of negotiations that do not get one everything. I think that Ministers came back thinking, “We’ve got enough to satisfy Parliament” and perhaps to satisfy the European Scrutiny Committee, if that was what they were worried about, but at the end of the day they still felt that they could have come back with “may”. However,
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we accept that they probably thought that they got as much as they could from the negotiation process. Now this Government and all future Governments will have to fight to make the interpretation that is beneficial to this Parliament apply in every case, because there is no doubt that others will try to win back a more compulsive interpretation of “contribute”.

Mr. James Clappison (Hertsmere) (Con): I know that the hon. Gentleman cares deeply about the issue, but does it not remain the case, as my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) said, that what matters is the interpretation that will be placed on those words? Did not the European Scrutiny Committee judge in the conclusions of its report, after the Government had tried and failed to get the changes, that

Michael Connarty: The Committee did say that, and I quoted part of that report yesterday. The point is that the obligation “can readily be inferred”, and there will no doubt be those who wish to infer it, but they are not in the House, in the Government or in future UK Governments. It will be inferred by others who are trying to interpret the words in that way. What Parliament, the people who listen to and read our debates and I want to hear from the Minister is what show of strength the Government will give, and whether they will fight that corner and win on every occasion. That is why I do not think that the amendments are necessary, although they are useful, as they allow the Government to explain their position.

5.30 pm

David Howarth: It is a great pleasure to follow the hon. Member for Linlithgow and East Falkirk (Michael Connarty). I agree with a great deal of what he said, but I put a slightly different interpretation on how the situation came about. It always struck me that there was never really any problem with “shall”. It was always meant in a descriptive or performative way. The problem has come about because of the attempt at renegotiation. One could argue that the position is worse than it was when we started to try to renegotiate, because the resistance to the word “may” has apparently caused a problem with the interpretation of various articles that I did not think existed.

Without much doubt, “contribute” in article 8C is meant to be either a description of how things will work or, even less worryingly for the House, performative. In other words, when the things in paragraphs (a) to (e) happen, it constitutes the national Parliaments contributing

There is therefore no problem even with an implied obligation, because it would be fulfilled by virtue of those things happening. The problem that amendment No. 13 purports to address is, sadly, largely of our own making. It is a red herring—and we have well and truly smoked this herring into its present state. The best solution would be to have a debate now, and for the hon. and learned Member for Beaconsfield (Mr. Grieve) to withdraw his amendment. I am sure that the Government will offer reasonable clarification.

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Mr. Cash: I fear that I have to disagree with the hon. Gentleman. The significance of the words that we have been discussing—“contribuent” or “contribute”, and “shall”—relates to the arena in which they are supposed to operate. On top of all the points that my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) made, we need to concentrate on the words

because essentially what is being said relates to the implementation of the treaties to achieve the functioning of the European Union. That in turn goes straight back to sections 2 and 3 of the European Communities Act 1972, which is the mechanism through which we carry out the provisions of the treaties by implementing them in our law, subject to the fact that European law shall prevail, through the European Court of Justice, in that interpretation.

David Howarth: I understand the hon. Gentleman’s concerns, but if he reads article 8C all the way through he will see that that interpretation is not sustainable. Every paragraph in the article starts with a word such as “through”, “by”, or “by taking”. Paragraph (a), for example, says that national Parliaments contribute to the good functioning of the Union

I cannot see how that would give rise to any sort of obligation on national Parliaments. The provisions are a description of the ways in which national Parliaments contribute to the good functioning of the Union. I cannot see an obligation behind those words.

Mr. Cash: Let’s wait and see.

David Howarth: The hon. Gentleman says that, but there will always be a problem of that sort with human languages and courts. There will never be absolute certainty or clarity about any legislative instrument.

I turn to the other new clauses before us. I pay tribute to the hon. Member for Stone (Mr. Cash) for his new clause 8 on the Bill of Rights, but I cannot follow him on his new clause 9 on parliamentary supremacy. In new clause 8 he has come across a form of words and a way of dealing with a possible problem which is, in the immortal phrase, mostly harmless. The good thing about new clause 8 is that it concentrates on a traditional English way of dealing with problems by focusing on the remedy that someone might obtain, whereas new clause 9 is rather in the realms of theory.

However, I am not entirely convinced any more that article IX of the Bill of Rights in its present form is desirable. There are problems with a legislative assembly being entirely immune to legal review. That tends to lead to a situation of lawlessness where arbitrary power can be exercised and minorities can be oppressed. I would not go as far as the late Member for New Ross in 1881, who described what sometimes happens in the House as “unmitigated despotism”, but there is a problem.

Nevertheless, the way to deal with that problem is certainly not to allow changes in article IX to come about by some kind of accident through changes in European legislation. If we were to reform article IX we should do so in a way that is proper and convenient for us across the entire range of possible legal problems, rather than only those that arise out of our relationship with the European Union.

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The question to ask about new clause 8, which might be a problem in the minds of my colleagues, is whether it might prevent ratification of the treaty. I do not think it can. That problem arises in many of the amendments tabled by certain hon. Members, but not in this case. The argument against the new clause must be only that it is not necessary. It is already the case that nothing in existing European legislation threatens article IX. I shall be interested to hear from the hon. Gentleman whether he can point to any changes specifically in the Lisbon treaty that would have that effect. We have had the experience of the past quarter of a century with the legal position being fundamentally the same as it is now, and so far no obvious problems have arisen.

Mr. Cash: As an immediate response, I give as a sort of example something said on the Floor of the House. In the proceedings in Parliament, subject to the rules of the House being enforced by the Speaker, a Member might use language that was detrimental to another Member of the House. The question of xenophobia might arise, although there is no definition of xenophobia in European legislation. Proceedings in the House which included a xenophobic phrase would not be questionable, subject only to the rules of the House on unparliamentary language. In the absence of protection under my new clause 8 for the Bill of Rights article IX, those proceedings could be challengeable in the European Court. One could think of many other examples.

David Howarth: The hon. Gentleman is right to point to the problem, put simply, being about whether anyone could obtain an injunction against the Speaker to prevent the Speaker from putting a particular question to the House. However, that is such an implausible circumstance that I cannot see how it could arise; the courts would have to have entirely abandoned not only the words of the Bill of Rights, but its entire spirit and structural importance. The hon. Gentleman has produced an excellent, elegant solution to a problem that does not yet exist. I shall be interested to hear his comments in support of his new clause.

I cannot support the hon. Gentleman’s new clause on supremacy. The problem with the word “supremacy” is that it has too many different meanings. When people talk about supremacy, they often confuse political capability—a capacity to do things—with theories about which legal order can be changed by Acts of a particular Parliament.

Even in respect of that second interpretation, I sometimes get the impression that people who talk about the supremacy of Parliament want to get to a situation in which this Parliament can make European law. That is impossible; the legislative supremacy of this Parliament relates only to its ability to change the British legal order. We will never be in a position to change the European legal order. What keeps coming up in our debates is the question of what happens when those two legal orders clash. When that happens, it seems to me that there is nothing that we can do to alter the result as the hon. Gentleman wants.

Mr. Cash: I respect the hon. Gentleman, who is a distinguished lawyer from Cambridge university. The problem is surely this: implementing the treaties made by prerogative, which are then translated into UK law
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through the combination of sections 2 and 3 of the European Communities Act 1972, effectively produces a circle within a vacuum of representation. On the face of it, we cannot disagree with the arrangements; we cannot specifically—so it is said—amend the provisions, because we are bound by those sections of the 1972 Act. That is where the problem lies and where the centre of this legal conundrum’s gravity exists. We have to break free from it.

David Howarth: I see what the hon. Gentleman is saying, but we are bound by our own Act; we have decided that that should be so. We could always decide not to be bound by it, but until then we are in the European legal order, which decides its rules by its own procedures. We cannot change the European legal order; it can change its rules only by its own procedures. We can, however, change the rules of the legal system of this country, and that always includes the possibility of repealing the 1972 Act and withdrawing from the entire structure.

Mr. Cash: This exchange is a useful introduction to the whole question. It does not necessarily follow that repeal would be necessary; perhaps only an amendment would be necessary. In those circumstances, the prospect of amendment is most emphatically understood to be a possibility in respect of House of Lords judgments that I shall cite later, if I get the chance.

David Howarth: The hon. Gentleman will presumably quote cases such as McCarthys Ltd. v . Smith, in which Lord Denning said that if this Parliament were to pass an Act incompatible with European law, and yet not withdraw from the European Union, the English judges would follow what we say. That is certainly one view; there are others. Professor David Feldman, who, among other things, is professor of constitutional law at Cambridge university—he used to work in this House—suggested that what might happen is that the English judges would refer the question to the European Court of Justice, which would then, working within its frame of reference, come to a different decision. That was the point that I was trying to make about there being different legal orders. We are supreme within our own legal order, but not somebody else’s.

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