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“may make ‘any such provision (of any such extent) as might be made by Act of Parliament’”.
What we are dealing with, Mrs. Heal—I welcome you to the Chair—is a provision within section 2 of the European Communities Act, to be exercised through statutory instrument, which in turn has the same effect as any Act of Parliament.
My hon. Friend the Member for Rayleigh (Mr. Francois) might be interested to know why I am so concerned to ensure that we retain the supremacy of Parliament and the right to be able to redress things that can go wrong. It is to ensure that the courts do not apply the European legislation in such a way as to set it in concrete, and/or even, as in the case of Factortame and the Merchant Shipping Act 1988, to strike down Acts of Parliament. That might not be known to many people outside the House, because we tend to talk to one another. I hope that the BBC, under its charter, and others will ensure that people know that under the European Communities Act 1972, our ability to legislate is increasingly incapacitated.
Under those kinds of provisions, to be exercised through statutory instrument—as I shall describe in a moment, mere annulment on the Floor of the House is virtually no defence whatever—legislation is being imposed on the voters of this country in a manner that would horrify them if they knew that it was going on. What would they think if they also knew that it could not be repealed, on the assertions of the European Court, but not on my assertions or those of the House, if it properly considers such matters? Through a “notwithstanding” formula—notwithstanding the 1972 Act—we could ensure that nothing in the Act, including the provision related to the statutory instruments that can modify Acts of Parliament, shall be construed by any court of law as affecting the legislative supremacy of the United Kingdom Parliament. That is an essential safeguard. This contribution on the effect of statutory instruments and the vast amount of power that they contain, under the arrangements, complements my speech on supremacy last Wednesday.
“The intention in using such wide language must have been to exclude the possibility of judicial review on grounds of vires in the case of instruments made under section 2(2).”
Therefore, we are dealing not only with provisions that have the effect of being like Acts of Parliament, which cannot be amended because of the 1972 Act, but with judicial review being ruled out. That is pretty darn close, and is actually past the tipping point of an elected dictatorship—not even within the House, but going out into the European Union. In relation to thousands of statutory instruments, we are effectively being asked to hand over a power under section 2 that is virtually unchallengeable. In a moment, I shall deal with the minuscule, residual and meaningless opportunities for Members of the House to do anything about the instruments in question and their huge consequences. A power of annulment is a pathetic little block on the power that that provision gives to the European Union and Ministers.
It is truly said that the provisions of Community law that do not have direct effect were addressed in two ways by the 1972 Act: first, by making amendments to existing legislation to bring it into line with Community law; and secondly, by introducing a general power to make subordinate legislation—the matter that we are discussing—to cover future as well as present Community instruments.
According to the great commentators in their constitutional work,
“Although there was concern about the new power to make subordinate legislation, the government did not expect the power to be frequently used”.
I believe that that refers to the Government of the late right hon. Edward Heath. I have to say that I have always had the gravest reservations about the way in which the 1972 Act was put through, and about the broken promises contained in it. As for the statement that
“the government did not expect the power to be frequently used”,
perhaps they said that they hoped it would not be used. The authors of this great work then add
“an expectation which was clearly unfulfilled.”
Under section 2(2) of the 1972 Act, regulations may be introduced by a designated Minister
“for the purpose of implementing any Community obligation”.
Under the schedule, for “Community obligation” we must read “EU obligation”, and for “EU obligation” we must read
“The Union shall replace and succeed the European Community.”
That derives, in this context, from the unacceptable, deceitful mandate that was put through without reference—except on 20 June—to the European Scrutiny Committee, which is given the power and the right, on behalf of Members of Parliament, to report to the House about provisions that arise in relation to European legislation. The House has been conned by the German presidency and by the collusion of our own Government, who went along with it.
We cross-examined the Minister for Europe—who is sitting here today—and the Foreign Secretary, and asked them about the timing. I will not go into all of it now, but the bottom line is that the European Scrutiny Committee—a Labour-dominated Committee, I might add—was so appalled by what had gone on that its members, including our excellent Chairman, went on record in two reports proving the deceitful manner in which the thing had been done, and also stating that this constitution was substantially equivalent to the original constitutional treaty.
You will understand, Mrs. Heal, why I am linking the vast powers that the clause provides to the manner in which the whole process has been conducted. It is a thorough disgrace. It is completely outside the norms of parliamentary legislative processes. To my mind it is the equivalent of the dreadful provisions in the so-called Northern Rock Bill, but I need not go into that again today.
According to the great authorities whom I have been quoting, the Government said that they
“did not expect the power to be frequently used”.
For the benefit of those who wish to see what was said at the time, a reference is given:
“HC Deb, 15 February 1972, col 282.”
As I observed earlier, the Government may have merely said that they did not expect that to happen, but any such expectation “was clearly unfulfilled”.
Section 2(2) of the 1972 Act, which enables powers to be introduced by a designated Minister for the purpose of implementing Community obligations, is subject to schedule 2, which provides that the regulations may not be used for the purposes that I mentioned earlier. As I said, one is retrospection and another is tax. A third is the creation of
“any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine”
amounting to more than level 5 on the standard scale. The power to make regulations under those provisions is exercisable by statutory instrument which—these words are important—
“if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House.”
6.15 pm
The amendments would specifically remove the right to make the resolution subject to annulment, in line with what was, apparently, originally intended. They are extremely important, because they propose that, at the very least, the order should be subject to approval rather than—as clause 3 proposes—subject to annulment. However, that is said without prejudice to my other point, which is that the process should not take place in a way that would enable, by statutory instrument, the variation and modification of matters that should be dealt with by Act of Parliament.
These provisions are the European equivalent of a Henry VIII clause, which I should think would be a Charles V clause, a Frederick the Great clause or a Catherine the Great clause. This is another example of the change that is taking place in the way in which we legislate. It should be done, if at all—and I wish it were not done—by Act of Parliament, and not by any statutory arrangements of the kind that are being proposed. Fresh obligations under Community law continue to be implemented by both primary and secondary legislation, but, as I have said, it is not possible to amend those legislative arrangements, whether by primary legislation or by statutory instrument.
The constitutional commentators say:
“Although the power to make subordinate legislation has been widely construed, the government must indicate in clear terms what primary legislation is being repealed or amended when this procedure is invoked.”
That is according to R (on the application of Orange Personal Communications Services Ltd) v . Secretary of State for Trade and Industry [2001].
We are dealing with matters that have been given a great deal of judicial notice, but the reality remains that under section 3 of the 1972 Act it is incumbent on courts to give effect to what the European Court of Justice decides. It is necessary to complete the process to give effect to European law, hence my new clause 9, which would give us the right to reassert and put into effect the “notwithstanding” formula to override the 1972 Act where necessary.
Lest anyone imagine that that has not been done before, I remind Members that two years ago, in May 2006, the Bill that became the Legislative and Regulatory Reform Act 2006 was debated in the House. It was all to do with burdens on business, a matter of huge importance given that Commissioner Verheugen has said that it is costing the European Union some £100 billion a year, or perhaps €100 billion a year—anyway, a vast amount. That is a European Commissioner saying that over-regulation has gone mad. I wrote a pamphlet called “The Strangulation of British Business” along the same lines. The statutory instruments made to give effect to this over-regulation are now based on the Legislative and Regulatory Reform Bill, in which there is an order-making power to give effect to, among other things, European regulatory reform legislation. They call it better regulation; I say it is much worse, because there is so much of it. The amount is secondary to the qualitative effect. The quantity is appalling, but the qualitative effect is vast, as Commissioner Verheugen has said. The provisions in the Bill that would be put through by annulment only must at the very minimum be made by way of affirmative resolution.
I proposed a “notwithstanding” formula to bypass the order-making power of the type referred to in clause 3. That formula, in the interests of economic competitiveness, was endorsed. The Whips asked if I would be good enough to allow them to take over the amendments. I said, “By all means, feel free.” Lord Waddington, my good friend, took it through the House of Lords six weeks later. We did not win the vote but the Conservative party, here and in the Lords, endorsed the procedure, which would stop this nonsense taking place.
I now turn to the procedure that is to be followed. Irrespective of whether the matter is a European Community one or not, these are the parliamentary procedures prescribed for statutory instruments. I have here a helpful factsheet produced by the House of Commons Information Office. It is in good straightforward language and describes the nature of statutory instruments. It states that many laws in the UK pass through Parliament in the form of Bills, but:
“Often, Acts only contain a broad framework and SIs are used to provide the necessary detail that would be considered too complex to include in the body of an Act.
Secondary legislation can also be used to amend, update or enforce existing primary legislation. Statutory Instruments are just as much a part of the law of the land as an Act of parliament. The Courts can question whether a Minister, when issuing an SI, is using a power he has actually been given by the parent Act”—
that is the ultra vires question; is it within or beyond the powers of the Act?—
“but cannot question the validity of the Statutory Instrument for any other reason.”
I have just pointed out that it was clearly intended that the method to be employed under section 2 of the European Communities Act 1972, to which these instruments relate, was designed to avoid questions of ultra vires being challengeable in the courts. The factsheet indicates that the process is not meant to be carried out in a way that would result in challenge in the courts, but we know that there has been a serious attempt to try to avoid European statutory instruments being challenged in the courts for lack of vires.
How do these statutory instruments get made? I was on the Joint Committee on Statutory Instruments for several years under the chairmanship of the late husband of the hon. Member for Keighley (Mrs. Cryer), Bob Cryer; a very good man and excellent cricketer, who captained the Yorkshire—
The First Deputy Chairman of Ways and Means (Sylvia Heal): Order. The cricketing skills of former Members of this House are not part of the amendment.
Mr. Cash: All I can say—the transcript will demonstrate this—is that although I am making a fairly substantial, some would say long, speech, every single word I have expressed is directly related to the instrument-making power and to the impact of the extension of EC law to modifying Acts of Parliament by statutory instruments, which is under no circumstances acceptable.
When I was on the Joint Committee, I suggested that against the title of every statutory instrument that came from the EU we should put a little “e” so that when people tried to judge whether or not the question of vires applied, they would know whether the instrument was related to a European Community obligation or not. I understand that once I left the Committee, that process was discontinued, which is a great shame. I hope it is to be brought back—someone suggested that there was talk of it—otherwise, one cannot track the extent to which European legislation has that overriding quality.
In relating this matter to the proposal from my right hon. Friend the Member for Wells that it should be subject to affirmative resolution, an interesting question arises from the procedure of negative resolutions. A negative resolution is a procedure for annulment.
Mr. Gummer: It sounds like something occult.
Mr. Cash: It is like “The Devil Rides Out”, but the devil is in the detail. Instruments subject to negative resolution procedure become law unless there is an objection from the House. The instruments are laid in draft and cannot be made if the draft is disapproved within 40 days. That is significant because it is not possible under the 1972 Act to disapprove a draft; one is not allowed to as a result of the implications of sections 2 and 3 of that Act.
Clause 3(5) of the Bill states:
“An order under subsection (4)—
(a) may include incidental provision
(b) shall be made by statutory instrument, and
(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
That is nonsense. It is quite clear that such an order cannot be made if the draft is disapproved within 40 days. It is not, however, possible for the House to disapprove it because of sections 2 and 3 of the 1972 Act, so this provision in the Bill is a complete nonsense. I would like the Minister to address that point. It has taken me quite a long time to reach it, but it must be right because I am referring to a House of Commons factsheet. It states that statutory instruments that are subject to the negative procedure
“cannot be made if the draft is disapproved within 40 days”,
but there is no power to do that under the 1972 Act—which, incidentally, is part and parcel of the entire operation of the Lisbon treaty. Therefore, as I have said, this provision is complete nonsense.
6.30 pm
It would be preferable for the instruments to be subject to affirmative procedure, because under those arrangements instruments cannot become law unless they are approved by both Houses. I say with due deference to my right hon. Friend the Member for Wells that although I agree that it is important for us to have something better than the negative procedure, the reality is that even if we have the affirmative procedure and do not use primary legislation, we will run straight into the problems of the acquis communautaire and the 1972 Act. Furthermore, even primary legislation can be overridden—which is why I tabled new clause 9 on the supremacy of Parliament. Therefore, we are in a fine old mess, and I do not think it is possible for people to appreciate quite how much power has drained away from this House.
There is a body called the Joint Committee on Statutory Instruments; I have served on it. There is also a new Lords Committee on the Merits of Statutory Instruments. It was first appointed in December 2003, and it complements the work of the Joint Committee. The Merits Committee’s task is to consider the policy implications of statutory instruments and to decide whether a statutory instrument should be drawn to the House of Lords’ attention on certain grounds, including
“that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House”
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