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Mr. Cash: The Bill has received a great deal of attention for many reasons, but unfortunately the amendment that was passed in the House of Lords about the protection of the Bill of Rights, which goes to the heart of our proceedings in Parliament and therefore our sovereignty, right to free speech and a raft of other matters, does not achieve its objectives-at least, it achieves the wrong objectives. I deeply regret the fact that the Attorney-General is not a Member of this House, because it is more appropriate to deal with the Independent Parliamentary Standards Authority in this place so that we can ensure that we properly protect the privileges and rights of this House and of Members of Parliament, and that proper and fair procedures will apply that will not be overridden by an attempt to refer an issue to the European Court of Human Rights or the European Court of Justice. We do not hold those rights for our own benefit: we hold them on behalf of the electorate. It is on that point that I make my main case.
Sir Patrick Cormack (South Staffordshire) (Con): I do not for a minute dissent from what my hon. Friend is saying. He is moving an important amendment that certainly has my support. Does he agree that it is appalling that we have only one hour to consider a completely rewritten Bill? I readily acknowledge that it was substantially improved in the House of Lords, but we have only one hour to consider all the important Lords amendments, as well as my hon. Friend's very important amendment. Is this not a terrible way to treat the House on the last day before we rise?
Mr. Cash: I could not agree more with my hon. Friend. The entire proceedings on this Bill have been conducted in an extremely shabby manner. Indeed, some important statements have been made by some of the most distinguished officials in the House-and in the other place-and the reservations that have been expressed, for example by the House of Lords Constitution Committee, about the fast-tracking of this Bill are a matter of record.
The problem is that because of the sovereignty of this House it is essential that we protect our supremacy with regard to the borderline between what we do here and what may be referred to the European Court of Justice or the European Court at Strasbourg. The wording that I originally proposed, and which was adopted by my right hon. Friends on the Front Bench a couple of weeks ago, contained the words that I now propose to reinsert.
"Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689."
"Notwithstanding any provision of the European Communities Act 1972, the European Convention of Human Rights or the Human Rights Act 1998".
Some distinguished lawyers took part in very learned discussions in the House of Lords. Lord Mackay of Clashfern and Lord Howe of Aberavon both made a number of brief comments but they did not go into the merits of the proposals to any extent. They simply averred their own opinions in a few sentences, whereas the Attorney-General gave a lengthy dissertation on the questions of privilege and other matters that relate to the Bill.
The fundamental question is as follows: if a disgruntled or aggrieved person raised an issue that ultimately led to judicial review, would a reference to the ECJ-or, to a slightly lesser extent, the European Court of Human Rights-override the jurisdiction of this House? The Attorney-General ruled out that possibility. In contrast, Lord Mackay, a former Lord Chancellor, said that although he did not think such a situation likely to arise, he could not rule it out. I have conferred on this matter with a number of eminent constitutional authorities-of such distinction that they are called on to give advice on matters in all the courts of law and in Parliament-and they agree with me that it is important that we retain in the Bill the words that my amendment proposes to reinsert. They accept that it would not be possible to assume that neither the ECJ nor the ECHR would not get their hands on a particular matter.
Mr. Dominic Grieve (Beaconsfield) (Con): I shall cheerfully support my hon. Friend's amendment if it is put to the vote, but I have one question for him. He mentioned the ECHR, but it does not have-and never has had-any jurisdiction over this or any other court in the land. It is the embodiment of a treaty obligation. It can rule that the proceedings of this House, for example, might be in breach of the European convention on human rights-although it might be foolish of it to do so-but that ruling cannot be binding. For that reason, the part of the amendment that he is presenting would not have any impact one way or another. The rest of it is of greater importance.
Mr. Cash: I am grateful to my hon. and learned Friend. I am not going to disagree with him on that point, but I am concerned to remove uncertainty in a matter of such importance as this. In passing, I want to pay tribute to Lord Jenkin of Roding for the extremely efficient way that he dealt with this matter in the House of Lords.
I shall begin by setting out the problems posed by the European convention on human rights. There has been a great deal of comment, in the House of Lords and
elsewhere, about a case in 2003 known as A. v. the United Kingdom. It is a lengthy judgment, and I do not have the slightest intention of going through all the detail, but it did not apply only to the UK. Other nations were concerned about possible intrusion into their privileges-Italy, France, Ireland, Finland, the Netherlands, Belgium and Austria played an active part in the case. It can fairly be said that the case did not settle the question of the application of article 6 of the European convention on human rights. I would go further and say the court concluded that
"the parliamentary immunity enjoyed by the Member of Parliament in the present case"-
"pursued the legitimate aims...of protecting free speech in Parliament and maintaining the separation of power between the legislature and the judiciary."-[ Official Report, House of Lords, 20 July 2009; Vol. 712, c. 1420.]
However, that was only with reference to that case, and there is no doubt whatever that the European Court did not exclude the possibility of difficulties in maintaining parliamentary privilege and that the court might in future need to take steps to override, effectively, what is done in this House.
"The absolute immunity enjoyed by MPs is moreover designed to protect the interests of Parliament as a whole as opposed to those of individual MPs."
That is part of the Court's reasoning. The Bill would affect individual MPs, so it follows that the Court's nostrum would not be applicable if an MP was concerned whether he had had a fair trial or whether he was affected by the question of free speech or other matters that are included in the convention.
The question of the European charter of fundamental rights was not examined in the deliberations in the Lords to any significant or useful extent. The reality is that the charter, which was attached to the Lisbon treaty and which is binding, contains a lot of overlaps with the European convention on human rights. They run parallel, but of course the protocol that incorporates the charter invokes the ECJ. I should like to comment on the problems that I believe would arise in that context. We should also bear it in mind that under the well-established cases of Costa v. ENEL 1964 and cases such as Handelsgesellschaft and Van Gend en Loos, the Court in Luxembourg has made it absolutely explicit that
"the laws stemming from the Treaty, an independent source of law...cannot"
"nature be overridden by"
"however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question."
"This case...unequivocally declares the supremacy of Community law over inconsistent domestic law, including in particular domestic law introduced after accession. Community law also takes priority over inconsistent provisions of national constitutional law."
"Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised...by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Member States' constitutions."
If questions of privilege in relation to article 9 of the Bill of Rights, which includes references to proceedings in Parliament from which all other things flow, such as freedom of speech and so on, as well as the fairness of trials, are to be properly implemented, it is essential that we do not find ourselves in a position where there is any uncertainty about whether European law, and in particular the charter in regard to the ECJ, would override the proceedings of the House.
Mr. David Heathcoat-Amory (Wells) (Con): Has my hon. Friend taken note of the fact that the treaty of Lisbon, if ratified, will extend the competence of the EU into matters of law and the rights of the accused? If someone claimed to have been libelled or if a trial was prejudiced by proceedings in the House and what is said here, they could go to the European Court of Justice under the charter of fundamental rights to obtain redress. That, unlike the convention, is binding on us and is superior to English law because it is embedded in a superior treaty.
Mr. Cash: I absolutely agree. It was extremely disappointing to read both the Attorney-General's letter and her speech and find that she was so categoric about something that one simply cannot be categoric about. Because the question involves matters of such supreme importance, it is absolutely essential that we put it beyond any doubt. The Justice Secretary may say, "Oh, we don't need to do this," but my response would be that in the course of the proceedings on clauses 9 and 10 I put it to him that the Clerk of the House and the Speaker's counsel had come up with certain issues and when I asked whether he thought they were wrong, he said, "Oh no, they're not wrong", and then he just ploughed on. As it happens, the Government eventually had to give way, but in these circumstances it is essential that we act not merely with an abundance of caution but with prudence. It is precisely the judicial activism of the European Court of Justice and the Court at Strasbourg that continuously creates an extension of judicial activity and supremacy over our laws.
"it is very unlikely that anything in the Bill would give rise to subject matter that could be interpreted by the European Court of Justice."-[ Official Report, House of Lords, 20 July 2009; Vol. 712, c. 1423.]
The Attorney-General has not said "Never". If there was ever a case for belt and braces, it would seem to be this. If she had said that it could never possibly happen, the Government could legitimately oppose the amendment, but the fact that she said merely that it was "very unlikely" suggests that she holds out the possibility that it could happen.
If the Justice Secretary raises a question about whether the provisions of the charter are indeed addressed only to the institutions and bodies of the Union-as I anticipate he may-he ought to bear in mind the fact that the matter arises under article 51, whereas the reference I gave just now to the level of protection arises under article 53, which contains the phrase:
"Nothing in this Charter shall be interpreted as restricting".
That includes member states' constitutions. That provision has to override article 51, so in that, even if in no other manner, it clearly creates a conflict between the two provisions, which is a good reason why we need to make sure the measure is completely right.
Mr. Mark Field (Cities of London and Westminster) (Con): The uncertainty that my hon. Friend has expressed in great detail should worry all of us. Does he agree that realistically the Government must understand that there are constitutional issues up in the air? Do they not simply desire for public relations purposes to get a Bill-any Bill-on to the statute book before the House rises? That is an appalling abuse of the parliamentary system and does us collectively no great favours. It may give the Government a few good headlines tomorrow morning about how they got the Bill through, but the Bill has already been emasculated and would be further emasculated if we take my hon. Friend's proposals on board.
Mr. Cash: Indeed. In conclusion, this is a very important matter. It affects the sovereignty of the House, and therefore it directly affects the interests of our electorate. It is essential that the words that I have proposed should be inserted before the wording in the Lords amendment. I hope we will be able to vote on the matter later this evening.
The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): I hope it will be for the convenience of the House, particularly in view of the shortage of time-[Hon. Members: "Whose fault is that?"] I knew that would be said-but as the time is indeed short, for the convenience of the House I shall deal with the recommendation to the House that we accept all the Lords amendments, and why, and also respond as quickly as I can to the points made by the hon. Member for Stone (Mr. Cash).
Reference has been made to the improvements to the Bill. All three party leaders agreed-I say to the hon. Member for Cities of London and Westminster (Mr. Field) -that we should make proposals for a parliamentary standards authority. We had to do so from a standing start-
Mr. Straw: I commend the spokesman for the Scottish National party, who, if I may say so at the risk of damaging his political career, played a very constructive part indeed. I am extremely grateful to him, along with his colleagues from Plaid Cymru and the parties in Northern Ireland.
If I may correct myself, the leaders of the three largest parties in the House explicitly committed themselves to establishing a parliamentary standards authority. So, I believe, did the leaders of the other parties. Certainly, all parties co-operated actively in all-party talks, which I chaired with my right hon. and learned Friend the Leader of the House. We had to do that from a standing start. It has been quite the most difficult piece of emergency legislation that I have ever had to deal with over many years, because we started from a blank sheet.
I am not apologetic about the fact that the Bill has been changed on its way through the House. That has been the essence of the parliamentary process both here and in the other place. I would rightly have stood condemned had I sought to resist a series of changes that were urged on us as we pooled our collective wisdom from all sides of the House, at both ends of the building, to achieve a better Bill. We have achieved a very much better measure as a result, and I will take the House briefly through the principal changes.
Sir Robert Smith (West Aberdeenshire and Kincardine) (LD): Reverting to the right hon. Gentleman's opening remarks about the time allowed for this debate, it seems rather sad that yet again, a Bill aimed at the House of Commons had the fundamental work on it done in the House of Lords. We must get the systems in this place right so that we deal effectively with legislation here, rather than relying on the House of Lords.
Mr. Straw: I agree, as it happens. I hope that the Committee that we agreed last night to set up under the chairmanship of my hon. Friend the Member for Cannock Chase (Dr. Wright) will pin that down and ensure that more active time on the Floor of this House is used for legislation.
Mr. Heathcoat-Amory: On a point of order, Mr. Deputy Speaker. My understanding is that "Erskine May" refers to a programming Committee that should sit and decide, on each Bill, the allocation of time. It seems from what the Justice Secretary has just said that the programme was agreed in some cross-party Front-Bench deal, to the disadvantage of the wider rights of the House. Could you advise the House whether any Committee did sit, whether it should have sat, and what its conclusions were before we were restricted to one hour's debate on a very complex Bill with over 30 amendments from another place?
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