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I will explain. To take my right hon. Friend’s amendment No. 20, for example, if we were to insert the words “by Act of Parliament” but not include “notwithstanding the European Communities Act 1972”, the following would happen—I do not say that it could happen, but that it would happen. In the case of the Merchant Shipping Act 1988—I hope that my right hon. Friend will listen carefully to this—an Act of Parliament was passed that the European Court regarded as inconsistent
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with the 1972 Act. A case called the Factortame case went to the House of Lords and was heard by Lord Bridge and others. As a result of the lack of the words “notwithstanding the European Communities Act 1972” in the Merchant Shipping Act, our own House of Lords, effectively on instruction from the European Court of Justice, struck down our Act of Parliament. The House might find that incredible because, after all, that Act of Parliament had been passed in pursuance of Government policy, and in pursuance of the interests of British fishermen and, therefore, the interests of the people of this country.

Mr. Duncan Smith rose—

Mr. Cash: I shall give way in a moment.

The reality is that that case demonstrated the assertion of primacy by the European Court of Justice, which is contained in declaration 17 of this treaty, by the way. That is a restatement of the case law, which has much more significance as a result of the restatement than hon. Members might think. Incorporating the reassertion of the primacy of European Union law by the European Court of Justice, not only in respect of individual pieces of legislation but of our entire constitutional arrangements, including everything that we do in this House on behalf of the people who vote us in here, will result in all those things being overridden by the arrangements that are specifically stated by the European Court of Justice in its assertions as against this House. I do not want to minimise the importance of that. For that reason, I have put the words

into another amendment, which we might have an opportunity to deal with tomorrow.

Mr. Duncan Smith: Will my hon. Friend give way?

Mr. Cash: I will certainly give way to my right hon. Friend in a moment. I just want to get this on the record.

It is absolutely essential to protect the provision that my right hon. Friend the Member for Richmond, Yorks explained so well just now from being overridden by the European Court. I know that my right hon. Friend does not want that to happen. I have pleaded with him on a number of occasions to listen carefully to what I am saying on this subject. He is right: these changes should be brought about through primary legislation. He is also right that the provisions would ride roughshod over our parliamentary procedures here, and that the proposed motion would get nowhere. The hon. Member for Birmingham, Edgbaston (Ms Stuart) is also right to say that this measure will be driven through by the Whips, and that that is a reason why an Act of Parliament should be used.

However, it is also necessary to protect such an Act of Parliament from the predations and assertions of the European Court of Justice in circumstances in which we, as a nation—and we, as a Parliament, on behalf of our own citizens and voters—have decided that we want to take a position that differs from what is being prescribed, sometimes in defiance of the wishes of our own Government. We already know, from contributions from the Minister for Europe and others, that the Convention overrode a lot of the decisions that the Government
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wanted to make. We are therefore already implementing in the Bill things that we know the Government did not want. That is because they were weak-kneed and they buckled. In the circumstances that I am describing, we would be overridden and kicked into touch.

Mr. Duncan Smith: My hon. Friend has moved on slightly from the point on which I wanted to intervene on him. I just wanted to make the point that the Factortame case was a critical moment for us. I also wanted to re-explain to the Committee—particularly some Labour Members, although not the hon. Member for Birmingham, Edgbaston (Ms Stuart), who understands these things—the reason why the position of European law and the European Court is much more damaging to us than to almost any other country. That is because we have no checks or balances to stop the direct judicial activism that has flowed here directly as a result of European law. The Conseil d’Etat and other constitutional courts make their Parliaments revisit this matter and study it, but we do not. That is why so much has flooded through this place. Now those countries anticipate that and act accordingly, so they do not get struck down in the courts. That is the big problem that we face with the clause.


Mr. Cash: My right hon. Friend is right in his general principle, but let me add one or two points to what he said. First, there are already cases in the German and Italian courts—and perhaps the courts of one other country, too—that until recently and in some instances still remain in defiance of arrangements made by the European Court of Justice. That is because there is a conflict between what those courts want, what the European Court wants and the individual national constitutions. I am afraid to say that the tendency has been—it is part of the process of negotiations over the treaty of Lisbon—effectively to move past that as if it were not like an ectoplasm and as if it really did not matter very much. Actually, each of the countries concerned has displayed a tendency to roll over, even where there is a written constitution, as in Germany, as I explained earlier.

I have been working over a number of months with German jurists of great eminence who oppose this treaty precisely because they fear it will have the effect of overriding the German constitution. About 10 years ago, there was the Brunner case, which dealt with similar questions. There are serious problems, as constitutions are being overridden by the ideology of the European Union. It is rather like the divine right of Kings, which overrode Parliament, leading to a pretty catastrophic result in 1649. I want hon. Members to take this very seriously, as this is not just a historical lecture, but what actually happened. I started my speech on the issue of the supremacy of Parliament and referred to the Putney debates for this reason— [Interruption.] The hon. Member for Birmingham, Edgbaston may laugh, but I am not absolutely—

Mr. Duncan Smith: No, the hon. Lady was not laughing.

Mr. Cash: I am very glad to hear that, because these are matters of English historical significance. I simply make that point, because it is important for us to remember that Governments—whether it be the Stuarts,
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or, more recently, in the mid-20th century, with Government nationalisation programmes—have periodically in our history attempted to drive through legislation with the effect of imposing an authority that did not have parliamentary approval of the kind that we are searching for in these amendments.

Ms Gisela Stuart rose—

Mr. Bone rose—

Mr. Cash: I shall give way to the hon. Lady first, and then to my hon. Friend.

Ms Stuart: As an aside, I recommend to every Member a recent book on the Putney debates, written by a member of staff who works for an MP. Does the hon. Gentleman accept that whenever the European Court of Justice has confronted a constitutional court head-on, so far it has always backed off? The real problem is that we do not have a similar buffer line to say that a decision goes against our constitutional structure, and I am not entirely sure that the hon. Gentleman’s amendment would achieve that either.

Mr. Cash: I do not want to go into the specific details of the “notwithstanding” formula now, except to say that it would have that effect, because if we were to legislate in a manner specifically, expressly and positively inconsistent with European legislation and we were to say so, our courts would be obliged under the rulings of Lord Denning, Lord Diplock, Lord Justice Laws and others in a well established line of cases to give effect to that latest express inconsistent law—irrespective of the European Communities Act 1972. That was said clearly by Lord Denning.

Mr. Bone: Although I agree with the thrust of my hon. Friend’s argument, would it not be better to accept the amendment that specifies the need for an Act of Parliament rather than accept the Government’s position, under which they will not have an Act of Parliament or primary legislation? If that entailed a huge row between us and the EU over sovereignty, would it be a bad thing?

Mr. Cash: The short answer is that if I were to choose between the amendments, I would most emphatically choose that tabled by my right hon. Friend the Member for Richmond, Yorks, because it would go a long way towards what I would like.

The problem is that that amendment would be ineffective in law, along the same lines as the Merchant Shipping Act 1988 in the circumstances that I have described. If there were conflict between the proposed Act of Parliament and the European Community decision or regulation made by the European Commission or a decision made by the EU—the treaty contains many embellishments and enlargements of the powers to make those various provisions effective in European law—we would immediately come up against that problem.

I say this in all seriousness and, I hope my right hon. Friend understands, a spirit of friendship, but also of some guidance, perhaps. He might carefully listen to what I am saying and take account of it. This is a matter not just of theology, but of whether his amendment would be effective.

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Sir Patrick Cormack: My hon. Friend and neighbour has taken us a little beyond the point at which I wanted to intervene, but I would like to say that nobody was quite as rough with Parliament as Cromwell was. My hon. Friend ought to remember that.

Mr. Cash: Yes, indeed. The hon. Member for Birmingham, Edgbaston has been reading about the Putney debates. An extremely good book by Mr. Yerbey describes in great detail everything that took place between 1640 and 1649, and demonstrates that the principle of common consent included trying to save the King but unfortunately, the Government and, I have to say, my right hon. Friends, rather like the EU, sometimes get into a position that is indefensible. In those circumstances, it is necessary for some people to get up and say, “So far and no further.” We have to protect the House and our voters by using the formula I have described.

Sir Nicholas Winterton: I respect my hon. Friend’s knowledge of the history of this country and the development of laws over the centuries, but I want to come right up to date. From my position, it is increasingly apparent that the courts in this country believe that our laws are subordinate to those that come from the EU. Is that not a correct understanding of the situation? Where does it place the primacy of the House of Commons and the United Kingdom Parliament?

Mr. Cash: My hon. Friend makes an important point, and basically he is right. There is an increasing tendency in that direction, and it exists in a number of academic circles as well.

To those who take an interest in these things—I hope Members do, because these issues will affect their constituents, which is my main concern in raising these points—I recommend their reading the section in the 14th edition of Bradley and Ewing that sets out in a crystal clear fashion the question of parliamentary supremacy and how it operates in relation to the EU, and effectively recommends that the formula I am adopting is the only way to achieve the objectives in relation to clause 6 or, indeed, the Bill as a whole. That is the subject of tomorrow’s debate on new clause 9.

There was a time when Professor Wade, who was one of the great authorities, purported to suggest that there had been a revolution in 1972, and therefore that the idea of European legislation was utterly entrenched. However, by the end of his distinguished career, he had already had it demonstrated to him that that was not the case.

Mr. Clappison: May I take my hon. Friend back to 1649, and its direct relevance to the amendments? Given the lack of any evidence that power has been returned to the House in the past. when it has been ceded under earlier constitutional treaties dealing with matters that will now be dealt with through qualified majority voting or the simplified revision procedure, does he agree that there is less chance of its doing so in future than there was of the restoration of the King in 1660?

Mr. Cash: On 3 May 1660, if we want to be absolutely precise.

My hon. Friend is right. That is why the kind of change that took place then, and subsequently in 1688—I have tabled an amendment relating to the Bill of Rights, which must also be considered for voting purposes—is
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so important. Although we talk as if we were completely up to date, the principles on which we are operating represent the gradual dynamic and evolution of our constitution. I am glad that it is as it is, and I want to keep it that way. We can adjust to changing circumstances, as was agreed by Edmund Burke and others who founded the Conservative party.

Let me return to the intervention by my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith). The acquis communautaire, which clause 6 would enshrine in these provisions, is effectively unalterable within the legal parameters of the European Union and its legal framework. We may be locked into decisions that cannot be changed, notwithstanding practical circumstances such as the economy, globalisation, overregulation and all the other factors that create the system by which we are governed. If we want to make changes, we will have to be able to unlock that arrangement.

Written into the European Union is an internal implosion mechanism. When things go wrong—when the unemployment level reaches a certain point, or globalisation and competition with China have an effect—it can apply in the context of several of the provisions in clause 6: provisions relating to social policy, the environment, European finance, enhanced co-operation, common foreign and security policy, and issues on which the adoption of qualified majority voting arises. In any of those contexts, the problem will be that Europe will need to get rid of the overregulation, and we in this country will need to make changes to bring us up to date.

Mr. Geoffrey Clifton-Brown (Cotswold) (Con): The Merchant Shipping Act 1988 relates to circumstances that were not specifically foreseen. My hon. Friend has always maintained in private that if the House legislates for specific circumstances, for example in the European Human Rights Act, it is very difficult for the European Court to overturn that specific legislation. Where on the scale does he put this amendment? Would the European Court be able to strike down specific primary legislation from the House?

Mr. Cash: I will not become involved in discussing the Human Rights Act because it is not the subject of this debate, but in response to the general question I will say that because of the root of the problem—namely, sections 2 and 3 of the European Communities Act—it is open to our courts to invoke that Act, as Lord Bridge did in the Factortame case. In 1972 the House entered into a voluntary arrangement, and for as long as it remains a voluntary arrangement the courts are quite properly entitled to say that we are in breach of our own Act of Parliament. We have to unravel that to be able to ensure that we can meet the changing circumstances that will enable us to make sense of legislation that would otherwise inhibit the proper conduct of our affairs. The European Union can come along and impose that on us, and we will have no recourse unless we use the formula that enables our courts to extricate us.

Sir Nicholas Winterton: My hon. Friend is making a most encouraging case. He has given an example in which the courts have used our legislation to stand up for British interests. Why do the courts of this land not take such action more often to support the interests of the United Kingdom and its people?

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Mr. Cash: The short answer is that it is precisely because of the judicial activism that we discussed earlier and the fact that there is a growing tendency for the European legal authorities, in concert and discussion with our judicial authorities, to arrive at decisions to amplify the application of European integration, whereas we on this side of the House want to diminish it, which is why we voted against the Second Reading of the Bill in principle. We are now engaged in a process. The Minister for Europe said that my party is tending to move in the direction of some of the arguments that I have made over a number of years, not because of anything specifically wonderful that I may have said—

Mr. Duncan Smith: Don’t go there, Bill. [ Laughter . ]

Mr. Cash: I am absolutely determined not to go there under any circumstances. I am saying that the most important thing is the recognition of the fact that this House matters to the people of this country. It has nothing to do with any individual’s contributions. It has to do with the fact that we are talking about fundamental principles of democracy. That is why it worries me so much when I hear the Liberal Democrat spokesman saying that the reason his party is adopting a certain position is because of its idea of democracy. I say to the Government that it is not possible to advance the argument that they are being democratic in putting this through when they have broken their promises and following all the utterly disgraceful reasons that they have given.

Sir Nicholas Winterton: My hon. Friend may take a long time to say what he has to say, but he knows more about European treaties than any other single member of this House and bravo to him.

Mr. Cash: I apologise for having at times to explain things at greater length than even I would like. [ Laughter . ] That is a remarkable admission from any Member of this House, although Gladstone once spoke for six and half hours. I have no intention of doing anything like that tonight, I can assure you, Sir Alan. I would not be allowed to do so, either.

The Chairman of Ways and Means (Sir Alan Haselhurst): Order. The hon. Gentleman almost anticipates me. I was about to say that he would perhaps face a sterner test with me on that particular point.

Mr. Cash: And may I say, “With some relief,” Sir Alan, because I know that we are time-limited.

To summarise, I have other proposals concerning the two-thirds majority. I proposed that to demonstrate that although I thought an Act of Parliament was a good idea, subject to the arguments that I have just presented, it might run into serious difficulties. I said, almost in a gesture of despair, that to have two thirds of each House required as a matter of law to have to give effect to a proposal would be a kind of block. It is intended as an indication of the fact that these arrangements under the clause should not be allowed to go through without a serious block. The two-thirds block is loosely based on the arrangements in the US, recognising that the US constitution is different from ours. However, it was an attempt to demonstrate that to push something like this though required a very stiff hurdle.

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