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5.45 pm

Mr. Cash: Will the hon. Gentleman confirm that in the Factortame case, for example, Lord Bridge clearly stated that we did what we had done in this House on a voluntary basis, as my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) said earlier? That is the key point. The 1972 Act is a voluntary surrender. The issue therefore becomes circular, and ultimately a matter of political will, but it must be addressed within a proper legal framework.

David Howarth: I agree with the hon. Gentleman to this extent: it is our doing that we are in this club. While we are in the club, we are bound by its rules. If we object to the rules, we can leave the club, but we cannot ourselves, by ourselves, change those rules—they can be changed only according to the rules of that club.

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Mr. Grieve: I agree with the hon. Gentleman’s broad premise, but it seems to me that there is a degree of flexibility in the way in which we decide to adhere to those rules. That is one of the things that we are teasing out in this debate. It is possible to alter that so as to ultimately make it clear that, were a conflict to arise, it would be a decision of this Parliament whether we wanted to break the rules, rather than a decision at another stage by the domestic courts. To that extent, there is a considerable amount of flexibility even in the European treaty, which I have recently been re-reading. We have to honour our treaty obligations under the 1972 Act, but how we go about that is left very much to our own domestic circumstances to decide.

David Howarth: I suppose that one response to the hon. and learned Gentleman is that we can attempt to breach our treaty obligations, but whether we succeed in doing so will be up to the courts. We can certainly withdraw from the treaty—the Lisbon treaty explicitly allows for that—but I am in no doubt that we were able to do that all along.

Another problem occurs to me in relation to the new clause on supremacy. The idea of supremacy is not really a rule within our constitutional order, but a presupposition of our constitutional order. Let me illustrate that. What if the judges were to do something which very occasionally some of them have suggested that they might do—change the order of priority between the supremacy of Parliament and the rule of law? All along, since the establishment of the supremacy of Parliament, judges have ultimately given way to what this Parliament says, even when that violates their ideas of the rule of law. But what if they were to reverse that? Could we, as a Parliament, re-establish the supremacy of Parliament by an Act of Parliament? The answer is obviously no. If we tried do that once the judges had come to a different presupposition, they would simply say that that presupposition was no longer the law. It is a question of the status of the supremacy of Parliament, which is, if anything, a rule of the common law. We ourselves, by passing amendments to Bills, cannot do anything about it. We cannot give it away either. We cannot give away our supremacy, and we cannot regain it if we lose it.

Mr. Richard Shepherd (Aldridge-Brownhills) (Con): We are touching on deep thoughts within our constitutional understanding of these matters. The question that surely arises is: who creates the judges, and by what authority are they judges? The hon. Gentleman will recall that on taking the Crown of England, William culled the judges and made sure that he had those who would pursue the interests he judged to be right. This House ultimately has the power to remove the judges, so therefore, sovereignty surely lies here.

David Howarth: The hon. Gentleman describes what is possibly the ultimate constitutional nightmare. It is a nightmare that is occurring right now in Pakistan, and it is not entirely clear to me that the Government and Parliament are on the right side in that particular debate.

Mr. Grieve: Gently teasing the debate back in the direction of the amendments, the only instances in which it has been suggested that a circumstance might
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arise in which United Kingdom courts, particularly the House of Lords, might effectively strike down legislation or order its disregard, are those where the legislation fundamentally undermines human rights or basic common law and constitutional principles. That has nothing whatsoever to do with our relationship with the European Union.

David Howarth: The hon. and learned Gentleman is probably right about that. The circumstances in which that would arise would be the use of ouster clauses—excluding the jurisdiction of the courts and keeping judges out of things. That situation could in theory arise in the circumstances that we are discussing. I have raised those points merely to illustrate the problem of using the word “supremacy” in a change made to a Bill. It is not a word that can be used with any precision.

New clause 5 seems an entirely sensible suggestion. The Government should come to the House to explain in what way proposals are in line with principles of subsidiarity, and so on. I might quibble with the word “evidence” in the new clause. It is not a matter of fact or evidence, but of argument and reasoning. The drafting is not perfect, but the proposal seems entirely right.

The debate on these topics is worth having, but apart from new clause 5, I am not certain that the new clauses would add anything useful. In some cases, were they to be passed, they might be quite difficult to interpret. Nevertheless, I look forward to the Minister’s reply.

Ms Hewitt: It is a great pleasure to follow the very thoughtful and interesting contribution of the hon. Member for Cambridge (David Howarth), who took us off into a wonderful constitutional theory seminar worthy of Cambridge university. It was absolutely fascinating.

The hon. and learned Member for Beaconsfield (Mr. Grieve) has repeatedly asked me to say why I do not support amendment No. 13, and I have similar reasons to those advanced by the hon. Member for Cambridge. It is a red herring and it is not necessary. I do not always object to redundant clauses in a Bill where they are genuinely included for the avoidance of doubt, but on this occasion, the hon. and learned Gentleman’s amendment raises—no doubt, quite deliberately—a question about whether the institutions of the European Union, notably the Commission, are trying improperly to place duties on this Parliament. I simply do not accept that articles 8C and 61B do that.

Mr. Grieve: The right hon. Lady needs to address the history of the text, which I touched on, and the curious discrepancies between the English and the French versions, which are striking, particularly because they seem to give rise to very different interpretations of the same words. I urge her to consider what is wrong with amendment No. 13. She says that it is a red herring, but is it a damaging red herring given what she and the Government wish to achieve? I do not think so. In those circumstances, given the ambiguity, I would have thought that she would be racing to support the amendment, so as to provide reassurance to those hon. Members who are anxious about the matter.

Ms Hewitt: I regret to say that I will not be racing to support the amendment, although perhaps we should wait and see what my hon. Friend the Minister has to say on the subject.

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I am not sure about racing to support new clause 5, but the right hon. Member for Wells (Mr. Heathcoat-Amory) might be surprised to learn that I find myself in great sympathy with it. Given the interesting debate that we had yesterday about how Parliament could strengthen its scrutiny proposals by fulfilling the important function of looking at proposals for legislation that come from the European Commission and making a judgment as to whether they are compatible with the principle of subsidiarity, it would be useful for the appropriate Secretary of State to give his or her view to Parliament—not to insist—to help it form its view on whether the Commission was in fact respecting subsidiarity in coming forward with particular proposals.

There is a parallel between what the right hon. Gentleman seeks to achieve in new clause 5 and what the Human Rights Act 1998 does. When a Secretary of State brings forward a Bill to the House, he or she has to certify that it is compatible with the provisions of the Human Rights Act. As I know from my experience as a Minister, that is an important responsibility and it requires Ministers to take advice, satisfy themselves personally that a Bill is indeed in compliance with the Human Rights Act, and if it is not, to make the necessary changes before it comes before Parliament or explain to Parliament why the Government seek to legislate despite the Human Rights Act. Although the parallel is not exact, new clause 5 would be helpful. My hon. Friend the Deputy Leader of the House, who recently made proposals on how we could strengthen the House’s scrutiny provisions, might want to consider what the right hon. Gentleman seeks to achieve in new clause 5 and take it on board as part of the package of proposals that she recently announced. I would be grateful if my hon. Friend the Minister could comment on new clause 5 and my suggestion in particular.

Finally and briefly, I do not pretend to follow all the sophisticated arguments with which the hon. Member for Cambridge explained his opposition to new clause 9. My opposition to it is rather simple. What the hon. Member for Stone (Mr. Cash) seems to be doing—I assume this to be the purpose of new clause 9—is trying to reverse the supremacy of European law on matters that fall within the European legal order by reasserting, on all matters, the supremacy of Parliament. As I argued yesterday, the European Union is precisely an institution within which we, the member states, pool sovereignty on certain issues because we believe that to be the best way of achieving our common objectives. To that extent, the sovereignty of Parliament is indeed somewhat reduced, because we have accepted the supremacy of European law, which we, through the Government and the Council of Ministers, have a large part in shaping. In that respect, we have accepted that European law is supreme.

Mr. Shepherd: We are talking about something that is central to our constitutional history and our constitution, yet we are going to dispose of the matter in two and a half hours. This theme has run through all our debates. The supremacy of Parliament cannot be lightly flipped away on a presumption of “how” or “what”, or on the basis that we have decided on a new constitutional order, because the British people have never been invited to discuss such an order. The supremacy of Parliament has been the lifeline by which our Parliament has arrived at a democratic national society that reflects the will of
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the British people. That is what concerns me when I hear people saying that we have entered a new order and temporarily “surrendered”—or however one wants to put it—a concept that is so basic to our liberty.

6 pm

Ms Hewitt: I have great respect for the hon. Gentleman, as I think he knows, but the supremacy of European Union law on matters that are properly within the scope of EU law has been a feature of the European Community since before we joined it. It goes back for decades: it was not created or invented by the Lisbon treaty and it is not something that we are tossing away in 10 minutes or a few hours of debate.

My objection to new clause 9 is quite simply that it seeks to reverse a central principle of the EU and our membership of it. Of course, that is precisely the view of the hon. Member for Stone, who does not believe that we should be a member of the EU, but I disagree. The British people voted to join the Common Market and now, through a series of treaty amendments—we should recall that the Conservative Government were responsible for the most important ones—it has become the European Union, which is not an issue that we should be trying to reverse.

With those remarks, I hope that I have explained why I will not support this group of amendments, but I hope that the Government will seek to carry forward the intent behind new clause 5.

Mr. Heathcoat-Amory: I rise as a non-lawyer to trespass on a series of legal minefields. I recall the line in one of Shakespeare’s history plays when at the start of a riot, Dick the Butcher says:

not a course of action that I would recommend, if only on account of my hon. Friend the Member for Stone (Mr. Cash) in his place behind me and the kind welcome given to my new clause 5 by the hon. Member for Cambridge (David Howarth), my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) and, indeed, the right hon. Member for Leicester, West (Ms Hewitt), who has just concluded. It seems that my modest proposal has gained a degree of cross-party alliance, which I hope will commend it to the Minister when he replies.

Before I speak to my new clause, let me touch on amendment No. 13, which I strongly support. It is wrong for this Parliament to be placed under any sort of legal obligation by a treaty, so the wording is very important. The word “shall” persists in the article on the role of national Parliaments, so we shall be required to co-operate with the European Parliament and other Parliaments and one can envisage a situation in future when we may wish not to co-operate. It is risky for the legal obligation to apply, particularly when disputes are decided by the European Court of Justice—an activist, interventionist and centralising Court that takes it cue from the existing requirement for ever closer union. Indeed, I have already drawn attention in an earlier intervention to a new requirement in the treaty whereby the Court as an EU institution will have to practise “mutual sincere cooperation”, not with member states
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or national Parliaments but with the other institutions of the EU, including the European Parliament. That seems very dangerous.

The wording in article 8C has been modified, and the word “shall” has been taken out—although not in the French version, as my hon. and learned Friend the Member for Beaconsfield noted. That simply creates confusion and ambiguity. It is worth reading out the sentence from the European Scrutiny Committee report on that:

It is interesting that the Committee described the matter as of constitutional significance, because it undermines the Government’s attitude that the treaty has been downgraded from a constitution to simply an amending treaty. Ambiguity is not tolerable. Whether it is from feebleness of negotiation or from a deliberate belief that national Parliaments should be part of a European legal order, the Government failed in that respect.

It seems to me—again, as a non-lawyer—that the phrase in article 8C cannot simply be descriptive and refer to a state of affairs whereby national Parliaments contribute to the functioning of the European Union. This is a legal text. It is designed to create obligations and responsibilities. It is not a text from an observer status. It is designed to do something—to change things—and it is almost certain that the drafters regarded it as conferring a new obligation. That is what the Court, in my view, will follow. It is right that the Government return to the matter and at least give an account of why they did not discharge their original undertaking to the European Scrutiny Committee to remove the ambiguity completely by inserting the word “may” rather than “shall”.

New clause 5 would reinstate a requirement that was in the original European Union Bill to make the Government justify all new EU proposals on grounds of subsidiarity. It would add conferral and proportionality to those grounds. However, it is a reinstatement, because that Bill, which received a Second Reading in 2005 and was withdrawn only when the French and Dutch referendums destroyed the constitutional treaty, contained a similar clause. Is it not appropriate to reinstate that proposal? That is the force of my new clause.

I should say at once that I have no real faith in the subsidiarity principle. The European Scrutiny Committee, of which I am a member, sees many proposals that are pretty clear breaches of subsidiarity, which is the principle whereby the European Union legislates only when the action in question has to be taken, or can only be taken properly, at EU level and cannot be done adequately at national level. Almost at random from my file, I pulled out proposals that came to the Committee. One, of a year or two ago, proposed action at EU level on violence at work. That is obviously a serious problem and we all want to deal with it, but it was not clear why the EU should legislate on that when it was clearly a breach of the subsidiarity principle. We corresponded at some length on that. What is interesting is that the Commissioner at the time, Commissioner Dimas, justified EU action on the grounds of

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If those are the reasons to justify EU action, there is no policy area in which such action could not be justified as there is always scope for the exchange of good practice.

Another legislative proposal to come before the ESC was for a programme to counter violence against children. Again, the Committee wondered what added value was supplied by adopting an EU-level approach, and we asked whether the proposal breached the subsidiarity principle. The answer was that the proposed action was intended to “identify and disseminate” best practice.

A more recent example was rather topical, in that it was about the assessment and management of floods. The Committee wanted to know how river flooding in England was a matter for the EU. We asked what would be added by EU action but, again, it was never explained. The ESC suggested that some EU action could be appropriate when a river crossed the boundary between member states, and we noted that there was such a river in Northern Ireland. However, that was not good enough for the EU, which was intending to tackle all river flooding, and the assessments thereof, by means of EU action that satisfied the subsidiarity principle.

It is not difficult to see from those few examples that the principle of subsidiarity is almost meaningless. The detailed protocol on subsidiarity has been a feature of EU law for more than 10 years but, given the widespread breaches, I do not have much faith in the ability of the EU or the ECJ to police the system.

The treaty contains one innovation. Its proposed yellow card system would allow national Parliaments collectively to object to a proposal for legislation on the grounds of subsidiarity. That proposal was advanced in the Convention on the Future of Europe as an extension of the rights of national Parliaments, but it was nothing of the kind. National Parliaments—and the ESC as well—already lodge objections on the grounds of subsidiarity. We never make any progress: for example, the EU was required only to review the yellow card proposal, but not to withdraw it.

The British Government wanted a much stronger, red card system whereby a proposal would have had to be withdrawn if national Parliaments objected to a proposal on the grounds of subsidiarity. The system that we proposed failed, of course.

If I may, Sir Alan, I should like to suggest the adoption of a new convention in our debates. When we objected to something in the Convention on the Future of Europe, the Government almost always ended up objecting to it too. The same thing continues to happen—although the difference is that we can maintain our objections, whereas the Government must pretend that they never had any. Well, we were all on the same side in the Convention on the Future of Europe: we failed, but the objection remains valid that the treaty contains no real, new powers for national Parliaments.

We now have what is called the orange card system. The colour has been changed, but the proposal could almost be called a green card, or a green light, for all the difference it would make. Under the new system, if a majority of national Parliaments object to a legislative proposal on subsidiarity grounds, and if they are joined by a majority in the European Parliament, the proposal has to be reviewed and could be withdrawn.

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