European Union Bill

Charlie Elphicke Excerpts

Tuesday 11th January 2011 Commons Chamber

[Kelvin Hopkins]

Indeed; the hon. Gentleman makes an important point. My concern is based on a suspicion that the Government are deliberately trying to leave this open and not have it pinned down so as to give wriggle room for future political events and developments. When something that appears to be so straightforward is resisted so strongly by a Government—even by my own when I was on the Government side of the House—I am always suspicious that there is a reason behind it, and that somewhere in the Government machine there are people wanting to ensure that something does not happen and that they have wriggle room in future. I do not want that to happen.

Like the hon. Member for Stone, I want to make it clear that the sovereignty of the British Parliament is retained as it should be. The people of Britain have made it clear that they want that to happen as well. Overwhelmingly, they are sceptical about the European Union, and it is our job to reflect that scepticism and not to give away to the European Union more potential power over this Parliament. We owe that to our electors. I certainly support them in that, and I support the hon. Member for Stone’s amendment.

[Charlie Elphicke (Dover) (Con)]

Underlying this entire debate about the European Union, sovereignty and the exact meaning of clause 18 is the fact that many Members of this House, myself included, would like to see a fundamental change in our relationship with the European Union. We would like to have a discussion about whether we control, or Europe controls, what happens in the regulation of the City, industry and business, and how we operate as a nation. There is an underlying desire on the part of many hon. Members to have a review of whether we should be part of the European Union at all. There is a desire to have a reworking of the Human Rights Act 1998 and a question mark as to whether it should be on the statute book at all—a concern that I share and that my constituents continually write to me about with a great level of invective.

[Geraint Davies]

In an earlier intervention, I mentioned the European systemic risk board, the European Securities and Markets Authority and the European Banking Authority. Does the hon. Gentleman accept that there is a case for systemic regulation when there is systemic risk? An opt-out clause would put us all at greater risk, so it is not a one-way street.

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[Charlie Elphicke]

I would agree with the hon. Gentleman were we part of the single currency and the eurozone, but we are not. The systemic risks to our currency and their regulation should be dealt with at home. We should not, as a matter of principle, be part of bailing out the eurozone, leaving the exception of Ireland to one side.

[Mr Jenkin]

In support of my hon. Friend’s point, it is a great mistake to believe that there ought to be identical systems of financial regulation throughout the world, because that magnifies the possibility that a systemic risk in one market will affect all markets in the same way. Various and competing regulatory systems are better for global stability.

[Charlie Elphicke]

I thank my hon. Friend, and there is much force in what he says. The UK’s destiny is best controlled by the UK. The sovereign Parliament of the UK is the cockpit of our nation’s ship of destiny—that is absolutely clear.

[Mrs Anne Main (St Albans) (Con)]

My hon. Friend makes a powerful argument. Many Conservative Members have been concerned about influence creep over the years. When we were in opposition, we were unable to do anything about that. Now is the time to be tight and specific in the influence that we have on European legislation.

[Charlie Elphicke]

My hon. Friend makes a powerful and correct point. There is concern in this House that it does not control the laws of the nation, because so many laws come from Europe. That brings me to my key concern.

[Mr Kevan Jones]

The hon. Gentleman stated that he wants to revisit our membership of the European Union. I know that he is a new Member, but he stood for election in May on a manifesto—perhaps he opted out of this part of it—that stated:

“We will be positive members of the European Union”.

It also stated:

“We believe Britain’s interests are best served by membership of a European Union”.

It went on to say:

“A Conservative government will play an active and energetic role in the European Union to advance these causes.”

Did he not believe in that part of the manifesto when he stood in May?

[Charlie Elphicke]

I thank the hon. Gentleman for that helpful intervention. Allow me to explain. I did not say that I believe that we should pull out of the European Union tomorrow—[Interruption.] I did not say that. I said that underpinning this debate is a question about our future membership. I do not believe that I should be responsible for pulling us out of the European Union; that is a matter that the British people should decide in a referendum, if and when such a referendum is ever put to them. I reject entirely the idea of a European federation that mimics the United States, and of an autonomous legal system that governs that federation and is imposed automatically, as a corpus, on every member state.

[Daniel Kawczynski (Shrewsbury and Atcham) (Con)]

Does my hon. Friend agree that nobody under the age of 53 in the United Kingdom has ever been consulted on the ongoing changing relationship with Europe, and that the likes of he and I have never had the opportunity to cast our votes on any of the changes?

[Charlie Elphicke]

I agree absolutely with my hon. Friend. Perhaps that matter should at some point be considered. I raise these issues of broad principle because if we are to rework our relationship with the European Union, it should be done by the Executive and Parliament, but whether we should stay in or leave the European Union is a matter for the British people to decide through a referendum.

Underpinning these matters is the simple principle that Parliament is sovereign. I have grave doubts about whether we should have clause 18 at all, because I am not sure that it adds anything. I have even graver doubts about the amendment of my hon. Friend the Member for Stone. As a lawyer, I worry about giving hostage to fortune, and I ask the House’s forgiveness and consideration for my preliminary remarks on my general feelings and approach to Europe when I say that I am not sure that it is safe or sensible to have such matters enshrined in statute. Parliamentary sovereignty is not a common law principle, it is a constitutional principle of the United Kingdom that has long been recognised by the judges.

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[Chris Bryant]

I completely agree. My anxiety about the codification process is that it is dangerous of itself, because it invites the courts to make judgment on the matter.

The hon. Gentleman referred earlier to referendums on whether we should stay in the EU or leave it. Would he support an amendment calling for such a referendum?

[Charlie Elphicke]

If the hon. Gentleman is planning to table an amendment on an in-out referendum, I will consider it. That is a matter for the House to debate, but I am concerned that he is trying to tempt me to stray from the subject matter of this group of amendments, which is sovereignty.

I am concerned about paragraph 106 of the explanatory notes, which states that clause 18 places on a statutory footing

“the common law principle that EU law takes effect in the UK through the will of Parliament.”

As a lawyer, I know that that is not a common law principle, as I am sure most lawyers do. It is a constitutional principle. No one case decided that Parliament was sovereign. It is sovereign, and it cannot resile from that sovereignty.

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[The Temporary Chair (Mr Roger Gale)]

Order. I am the most tolerant of Chairmen, but we really must try to stick to something remotely connected with clause 18.

[Charlie Elphicke]

Thank you, Mr Gale. You have saved me from having to get myself out of that one.

[Mr David Nuttall (Bury North) (Con)]

My hon. Friend made a point about the explanatory notes. Is not the real problem with clause 18 enunciated in paragraph 109 of those notes? It states:

“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law.”

That is what upsets the British people, and it is for that reason that we ought to put the matter of sovereignty and of our continued membership of the EU to the British people in a referendum.

[Charlie Elphicke]

Personally, I believe that it is wrong to see EU law as having primacy. I underline again that the UK Parliament is sovereign, and has decided to be part of the EU and allow its laws into our national life through the medium of the European Communities Act 1972. Equally, it is abundantly clear that the UK Parliament could change that position. To my mind, clause 18 amounts to a codification of that principle, which is clear from the Factortame case and from the metric martyrs, Thoburn case. In the latter case, as Members will recall and as paragraph 107 of the explanatory notes explains, it was argued that EU law

“includes the entrenchment of its own supremacy as an autonomous legal order”.

That argument was rejected. It is an important principle to understand: there is no autonomous legal entrenchment from the European Union. It is taken into account and part of our law only because we have made it so.

I can do no better than quote Lord Justice Laws, who hit the nail on the head. He said:

“Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the European Communities Act.”

When I was a law student, studying my books, I always viewed Professor Dicey’s principle as giving voice to the doctrine of parliamentary sovereignty. It is quite simple—I always thought of it as: the last Act to hit the statute book takes precedence. If it says anything different from a previous Act, the latter is discarded to that extent.

[Mr Kevan Jones]

Is not it also important in the case of the metric martyrs, Thoburn v. Sunderland city council, to note that it reinforced the fundamental point that European law could not limit Parliament in enacting legislation? The judgment reinforced the sovereignty point.

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[Charlie Elphicke]

If I may continue, Lord Justice Laws went on:

“It cannot stipulate as to the manner and form of any subsequent legislation.”

In other words, one Parliament cannot bind another. He continued:

“It cannot stipulate against implied repeal any more than it can stipulate against express repeal.”

That is a simple and clear principle.

It is not terribly helpful to have a codification—I am concerned about that—but we do not need to say “is sovereign”, because that poses the question of what “sovereign” means, as the Foreign Office pointed out. I do not think that that is a particularly helpful or constructive debate.

The real issue in the Bill is referendums and holding them on whether we should go any further into the EU. I pray in aid some of the submissions that were made to the European Scrutiny Committee. Paul Craig saw clause 18 as “sovereignty as dualism”. He said:

“It says nothing about sovereignty as primacy, and it doesn’t purport to reiterate, or iterate, the parent idea of sovereignty. There is no harm in having clause 18 if you wish it as a symbolic reaffirmation of the common law principle”—

I agree that it does no harm, but I am not sure whether “common law principle” is right; I think that it is a constitutional principle, so I slightly disagree with him—

“that a statute has no impact in the United Kingdom unless or until it is embodied in an Act of Parliament.”

I think that Professor Hartley also made a submission to the European Scrutiny Committee—doubtless, my hon. Friend the Member for Stone (Mr Cash) will correct me if I am wrong. He said:

“I think that the clause has value, because it emphasises that this is the law and this is the constitutional position. In my opinion, even without clause 18, courts would do what it says, but it would encourage and sort of strengthen them. I think that it has value even though, strictly speaking, it does not change anything.”

Although I have personal doubts as a slightly picky lawyer about the sense of including clause 18, I believe that it does no harm and it also underlines the principle that the UK Parliament has decided on and voted for membership of the European Union.

[Mr Cash]

I am afraid that I have to inform my hon. Friend that Professor Hartley did not address the question of the common law principle in his evidence. My amendments address that problem. The intrusion by judicial assertion to undermine parliamentary sovereignty is the problem, not the fact that the “status of EU law” says neither one thing nor another and is inherently unnecessary.

[Charlie Elphicke]

I pay tribute to my hon. Friend, with whom I agree on so many matters about the European Union. However, I regret to say that we must part company on the subject that we are discussing.

My hon. Friend prayed in aid Professor Tomkins, who gave written evidence, which stated:

“The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicial recognition of political fact rather in the common law.”

I am not sure whether that is right. I do not see it as “political fact”, rather as an important constitutional principle, which underpins—and has underpinned—all our dealings since at least the time of the Bill of Rights. Professor Dicey certainly gave voice to it.

Professor Tomkins continued:

“Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the European Court of Justice.”

That is true. The European Court of Justice is a highly judicially activist court, but it does not have authority in the UK directly through our membership of the EU. Its judgments have effect in the UK in interpreting European law because we have, as a Parliament, voted to pass that European law.

That takes us back to whether we need to state that the UK Parliament is sovereign, and to whether the codification of a constitutional principle, which is well understood and to which the courts have adhered time and again, is necessary. I think not. However, I think that we should be more honest, realistic and straightforward about what really concerns us: the fact that we have too many laws from Europe. There are too many interventions in relation to the Human Rights Act, which causes too many problems and too often gives the sense to many of my constituents that the innocent are punished and the guilty go free. That is shocking. Time and again, constituents approach us to express those concerns.

[Mrs Main]

Does my hon. Friend accept that we promised a sovereignty Bill because of the very concerns that he has just outlined? People felt that our country was not sovereign and therefore the Conservatives stood on a manifesto of trying to assert that sovereignty. That is why some of us are worried about the woolliness of clause 18.

[Charlie Elphicke]

We stood on a manifesto that stated that we would rework our relations with the EU and that we would conduct a renegotiation. Of course, we are sovereign. I repeat that it is clear that we are codifying the UK’s position as having a sovereign Parliament, and it is this place’s choice to remain in the EU. I believe that we should reconsider the number of our laws that come from the EU. We should take back some particular positions. That reflects the manifesto on which I stood. I regret that the election ended without our having a majority to allow that to happen.

[Jim Shannon (Strangford) (DUP)]

Does the hon. Gentleman agree that the common fisheries policy is a clear example of how sovereignty is affected? Days at sea, the number of boats and the quota were reduced. All those things were taken away—we gave them away. Surely we need harder and stronger legislation rather than less legislation. Fishing is a clear example of how things go wrong when we give away sovereignty.

[Charlie Elphicke]

There is much concern among Members of all parties about the common fisheries policy, the common agricultural policy, the whole thrust of financial policy and all the markets directives from the EU. There is also a general concern about the amount of activism and the way in which the EU stretches out its fingers excessively into our national affairs.

[Daniel Kawczynski]

Tentacles.

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[Charlie Elphicke]

My hon. Friend is right. However, that is not a debate about the sovereignty of the UK Parliament. It is a concern that the EU has grown too much, extended too far, cost too much and intruded too much into our national life. It should cost less, intrude less and our relations with it should be reworked.

I underline again that I believe that clause 18 is a fair reflection and codification of the current legal position. I do not think that we need it, but I will wear it and live with it. I do not believe that we need to include extra stuff about sovereignty, which is not defined, and has not been defined in the amendments. The best thing we can do is be more straightforward about the need for fewer laws and less interference from the EU.

[Mr Wayne David (Caerphilly) (Lab)]

This Bill, and more particularly this clause, have had a long gestation. In November 2009, the then Leader of the Opposition promised that if his party won power there would be a United Kingdom sovereignty Act

“to make clear that ultimate authority stays in this country, in our Parliament.”

He told his party that this was

“not about Westminster striking down individual items of EU legislation”,

but that its intention would be to

“put Britain on a par with Germany.”

He said that the German constitutional court had consistently

“upheld that ultimate authority lies with the bodies established by the German constitution”.

No doubt some Conservative party activists had some reservations about the idea of Great Britain being the same as Germany; nevertheless his proposal was warmly received.