United Kingdom Parliamentary Sovereignty Bill

Jacob Rees-Mogg Excerpts

Friday 18th March 2011 Commons Chamber

[Mr Harper]

The flaw in that argument is that to put into an Act of Parliament the language in clause 1 would invite exactly the problem that my hon. Friend is concerned about. Because it would be in a statute that judges would have to interpret, it would invite them to start defining “sovereignty” and interpreting what Parliament meant by the words in the Bill. I do not think that is very helpful.

[Jacob Rees-Mogg]

Will the Minister give way?

[Mr Harper]

I will give way once more on this point, then I will make some progress.

[Jacob Rees-Mogg]

I am grateful to the Minister for giving way, because this point is tremendously important and may, if he is correct, point to a fatal flaw in the Bill. I hope that he will deal with it carefully and precisely. I do not understand the idea that things that are in statute are justiciable but things that are not in statute are not. It seems to me that the judges can interpret the law of the land in the round, not just statutes. Will he focus on that point?

[Mr Harper]

The reason that my hon. Friend the Member for Stone gave for having the Bill and for reaffirming the sovereignty of Parliament was the risk that judges might erode the doctrine of parliamentary sovereignty by setting out some new, autonomous legal order in which EU law had authority in the UK regardless of whether Parliament continued to give it that authority. We had that debate on the European Union Bill, and my right hon. Friend the Minister for Europe made it quite clear that so far our judges have done nothing of the sort. In fact, they have had arguments put before them inviting them to take that stance and have specifically rejected them. That was why, in that Bill, which my hon. Friend and a number of other Members have talked about, we specifically set out that EU law had effect in this country only because it was given that effect by Acts passed by this Parliament. We did not think it was helpful—quite the reverse—to have a general sovereignty clause, which is what this Bill would introduce.

It is worth discussing one or two wider issues. My hon. Friend the Member for Worthing West was right when he drew attention to the fact that under clause 3(b), the Bill covers not just the European Union and the European Court of Human Rights but any rule of international law at all. It provides that no Minister of the Crown is to

“make or implement any legal instrument which…is inconsistent with this Act”,

in other words which affects the sovereignty of this Parliament. That seems a very wide term, including both domestic legal instruments and instruments that are binding in international law.

The Bill also appears to extend to any instrument, including any treaty, that the UK will make or implement, or has ever made or implemented. It appears that it would act with retrospective effect. It seems to me that that is quite deliberate given the words in clause 3 stating that it

“shall have effect and shall be construed as having effect and deemed at all times to have had effect”.

I shall come back to that in a moment.

I do not believe the Bill takes any notice of the changes that were made to the rules for ratifying treaties that were introduced in the Constitutional Reform and Governance Act 2010, which provides a number of tests and procedures for ratification that improve parliamentary involvement in the process. For example, when a Minister signs a treaty that does not come into force upon signature and to which domestic procedures concerning EU law do not apply, it may not be ratified unless it is laid before Parliament for a period of 21 days and neither House of Parliament passes a resolution objecting to it. If the House passes such a resolution, a Minister must lay a further explanation before the House, which may vote again within a further 21 days.

Only in exceptional circumstances may a treaty be ratified without the agreement of this House, and a Minister cannot override a decision of the House that it should not be ratified. If the Bill became law, what would happen if Parliament did not object to the ratification of a treaty but it was subsequently concluded that it was inconsistent with the Bill? What effect would that have on the sovereignty of Parliament?

I argue that the Bill is rather dangerous because of the effect that it would have on how we conduct international relations. It would make it impossible for us to participate in a number of organisations—for example, we belong to the United Nations and have signed a range of treaties connected with it. I listened closely to what my right hon. Friend the Prime Minister said this morning about the Security Council resolution. He pointed out the wide authorisation that it gives us and other members of the international community to act but he also explained that it places clear limits on what we can do. If the Bill were in force, it would not allow us to enter into agreements that limit what Parliament can do unless we held a referendum. We could not sign up to any international treaty with which we had engaged that somehow constrained our behaviour, as most do, unless we held a referendum.

My hon. Friend the Member for Worthing West highlighted the Bill that we discussed earlier, which encountered no opposition, on the wreck removal convention. If we accepted the measure that we are discussing, we would pass primary legislation to hold a referendum on whether the British people should support the wreck removal convention. That would not be welcome.

[Jacob Rees-Mogg]

My hon. Friend may have found a fatal flaw in the Bill, and I therefore ask him to consider it further. However, an EU rule has effect in this country above UK legislation, subject to the 1972 Act. That is not the case with agreements made in the United Nations or under other treaty conventions, which Her Majesty’s Government can abrogate at their own will.

[Mr Harper]

My point, which my right hon. Friend the Minister for Europe made when we debated the European Union Bill, is that EU law has primacy in this country only because Parliament has passed legislation to say so. The Government will not do it, but it is open to Parliament to change or repeal the Act so that EU law does not have primacy. It is possible, although we are not going to do it. That is the flaw in the argument.

Clause 4 is another good reason for objecting to the Bill because it purports to bind future Parliaments. It states that a Bill passed in this Parliament cannot be amended without the consent of the people in a referendum. An important aspect of parliamentary sovereignty is that Parliament may enact or repeal any legislation it pleases, and it cannot bind its successors. Clause 4 undermines that. It also states:

“No Bill shall be presented to Her Majesty the Queen for her Royal Assent which contravenes this Act”,

but is not clear who would determine whether a Bill contravenes “this Act”. It would clearly have to be the courts, which would then be engaged in assessing whether Parliament had properly passed Bills and whether Bills should have received Royal Assent before a referendum had taken place. That invites courts to have much more power.