European Union Bill

Wayne David Excerpts

Tuesday 11th January 2011 Commons Chamber

[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.

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[Thomas Docherty (Dunfermline and West Fife) (Lab)]

Perhaps my hon. Friend has noticed—as I have over the last six months—that there is not much point talking about the manifestos of the parties that are now in government, as it is clear that the very first thing they did on achieving power was to bin their manifestos and try to pretend that they had never existed.

[Mr David]

My hon. Friend makes a wider, but fair, point. We have seen the evidence of that all too often in the last few weeks.

[Mr Nigel Dodds (Belfast North) (DUP)]

On the issue of manifestos, does the hon. Gentleman regret the fact that his party, when in government, broke its manifesto pledge to give the British people a referendum on the Lisbon treaty?

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[Mr David]

The hon. Gentleman’s comments are inaccurate, because we did not give a commitment to have a referendum on the Lisbon treaty; we gave a commitment to have a referendum if there was a constitution, and there never was a constitution.

We have heard a long and well-argued speech by the hon. Member for Stone (Mr Cash). Although many of us on this side of the House would not agree with many of his views, we recognise that the European Scrutiny Committee, and he himself, have done much to ensure that this House will give proper consideration to the Bill. I have to say that I was shocked that the Prime Minister allegedly tried to block the hon. Gentleman’s appointment as Chair of the Committee. I was a member of that Committee for several years, alongside the hon. Gentleman, and I was pleased that when this Bill was presented to Parliament on 11 November last year, the Committee immediately announced its intention to conduct an inquiry and produce a report on the sovereignty clause before the Bill’s Second Reading. This report was extremely helpful during the Second Reading debate, and I am sure that all hon. Members will also find it useful for today’s debate.

I note that it is the intention of the Committee to publish further reports on aspects of the Bill, and I welcome that too. It is important to note that this is the first occasion on which the Committee has conducted pre-legislative scrutiny; I hope that its work is recognised by the Government and that the practice will be more widely adopted. Even more importantly, I sincerely hope that the Government will change the Bill in the light of the Committee’s report.

I have two disappointments. The first is that the Government did not allow the Committee sufficient time between First and Second Readings to hold thorough public evidence sessions. Given that the Committee stage of the Bill is being drawn out over several weeks—indeed, we do not even officially know when the other Committee days will be held—it is clear that the Government are in no rush to put this Bill on the statute book. Why then did they not allow the Committee more time for its evidence sessions? Are they afraid of more scrutiny?

My other disappointment is that the Foreign Secretary was not prepared to give evidence to the Committee. If he is so sure that his Bill is as robust as he says, why would he not appear before the Committee, put his case and answer questions? We all know that the reality of the Bill does not match the rhetoric that the Government employed. This so-called sovereignty clause is not what its advocates claim it is. It does not challenge the supremacy of European law; nor should it. It does not alter the nature of European law, change the relationship of European law or elevate the sovereignty of Parliament to a higher level.

In fact, what is most striking about the sovereignty clause is that it does not even mention the word “sovereignty”. It is simply a reaffirmation of the status quo. As the explanatory notes admit, this is merely a declaratory clause. It reflects the dualist nature of the UK’s constitutional model, by which I mean that EU law has effect in the UK only because of a decision taken by Parliament. In this case, the relevant legislation is the European Communities Act 1972. That is what clause 18 confirms, and as such it is nothing more than an exercise in legislative tautology—a puffed-up reiteration of what the law of the land already states.

So why have the Govt chosen to draft this clause? The reason we have been given is, in part, in the explanatory notes, which explain that in the metric martyrs case—Thoburn v. Sunderland City Council 2002—an attempt was made by counsel for Sunderland city council, Eleanor Sharpston QC, who is now the Advocate General at the Court of Justice, to argue before the divisional court that the binding effect of the EC treaty in domestic law depended, in part, on the higher principle of the supremacy of EU law. Eleanor Sharpston argued that the EC treaty did not owe its authority wholly to an Act of Parliament. That doubt, expressed by one individual in one case, is being used by the Govt to try to justify this clause.

[Mr Kevan Jones]

Does my hon. Friend agree that the case also clearly rejected the notion that EU institutions or legislation could somehow limit the powers of Parliament?

[Mr David]

Indeed, and that is my next point. Significantly, the argument made by Eleanor Sharpston QC was rejected.

[Mr Cash]

Does the hon. Gentleman also accept that Eleanor Sharpston has moved seamlessly upwards and has now reached a very eminent position? Does he also accept that the Thoburn case was decided only at first instance, so no one is absolutely sure what would have happened if it had gone to appeal, or if another similar case were brought and those arguments—especially given Eleanor Sharpston’s present eminence—were accepted?

[Mr David]

It is extremely unlikely that her arguments would have been accepted by any legal authority given the categorical rejection of them in that case.

In other words, as Professor Hartley, one of the Committee’s witnesses, stated, the metric martyrs—or Thoburn—principle is that

“the position of EU law in the UK and the sovereignty of the British Parliament ultimately depends on British law”.

In apparent contradiction of the reference to the metric martyrs case, the explanatory notes say that the Foreign Office itself sent written evidence to the Committee that stated:

“Our own analysis has led us to the conclusion that there is no persuasive legal authority to support the contention that the doctrine of Parliamentary sovereignty is no longer absolute. Our assessment is that, to date, case law since 1972 has consistently upheld the principle of Parliamentary sovereignty. There is no uncertainty here.”

Therefore, an argument that the Government accept is irrelevant is the only one that they can advance in their explanatory notes to justify the clause. How ridiculous can things get?

Small wonder, then, that when the European Scrutiny Committee concluded that

“the legislative supremacy of Parliament is not currently under threat from EU law”,

most scholars agreed. Moreover, the Committee went on to say:

“we have no reason to doubt that Thoburn reflected the well understood and orthodox position, which left the constitutional principle of dualism intact and is unlikely to be overturned”.

In view of that assessment, it is hardly surprising that the Government have tried two different arguments. The Minister for Europe said in a letter to his parliamentary colleagues:

“it cannot be denied that the issue has been the subject of legal and political speculation.”

We know about the legal speculation. As we have heard, it was dismissed by Lord Justice Laws and even by the Foreign Office itself. But what about the political speculation? Where is that coming from?

We know from evidence submitted to the European Scrutiny Committee by Jean-Claude Piris, director general of the legal service of the European Council—in other words, its legal adviser—that in his opinion clause 18 changes nothing. He believes that it reaffirms the doctrine of UK constitutional law under which EU law has effect in the UK by virtue of an Act of the UK Parliament. Furthermore, he went on to say that the clause is consistent with declaration 17 annexed to the final act of the intergovernmental conference, which concluded the treaty of Lisbon, and with the case law of the European Court of Justice. It is clear, therefore, that there are no threats coming from European Union institutions.

We do not imagine that any of the Government’s Conservative Back Benchers have questioned the sovereignty of Parliament, and I can assure the Committee that it has not been questioned by any Labour Members. Can it be, however, that the sovereignty of Parliament has been questioned by the Liberal Democrats? After all, they are the most pro-European party in Britain, and of course a former leader of the Liberal Democrats, the right hon. Member for Ross, Skye and Lochaber (Mr Kennedy), is the president of the European Movement. Furthermore, a former leader of the Liberal Democrats in the European Parliament, Andrew Duff, is a well-known European federalist.

That there is political speculation is one of the new arguments. Another has been suggested by the Minister for Europe in his letter to his own MPs, and more recently was advanced by the Foreign Secretary in The Sunday Telegraph at the weekend. He said:

“In its sovereignty clause the Bill also deals with one potential but important problem for the future.”

Having accepted that there are no current valid legal arguments, the Government are now pointing political fingers at unnamed politicians, and even suggesting that clause 18 is being introduced because of a hypothetical problem that may, or may not, materialise at some time in the dim and distant future. At the same time, the Government accept that clause 18 is not really needed at all, because Parliament is already sovereign. It is hardly surprising, therefore, that some have referred to the clause as being indicative of the Bill’s confusion, contradictions and general lack of clarity.

[Mr Redwood]

Does the hon. Gentleman think that there is ever the danger that if a sovereign authority gives away too much power, it ceases to be sovereign? That is what happened when the sovereign Crown ceded too much power to Parliament. Is he worried that his party gave away too much power to the EU?

[Mr David]

I do not believe so. It is important, from time to time and in specific circumstances, to pool sovereignty in the mutual best interests of a collective of states. That is what the European Union is all about.

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[Geraint Davies]

Does my hon. Friend agree that if there is a risk to sovereignty it is from this Conservative Prime Minister, who last autumn signed up to EU authorities that, as I said earlier, can impose binding standards on securities, markets, insurance, occupational pensions, banking and systemic risk? We can talk about the words, but what counts is the action, and the actions of the Conservative Prime Minister are not to cling to sovereignty but to give it away.

[Mr David]

That is an interesting point. The Prime Minister, rightly or wrongly, certainly believes that it is in Britain’s national interest to adopt from time to time measures that he perceives to be in Britain’s national interest and then to encourage Parliament to follow suit. We have to decide whether that is the case—but that is another debate.

The debate has brought to the fore a number of important issues. I am thinking in particular of the extremely important argument made in the European Scrutiny Committee’s report on the true nature of the threat to parliamentary sovereignty. The objective evidence presented by the Committee to the House leads it to conclude that

“if the legitimate supremacy of Parliament is under threat, it is from judicial opinions in other areas of law”,

not EU law. That is true. I am thinking in particular of the Jackson case of 2004, which concerned the constitutional validity of the Hunting Act 2004, and in which three Law Lords indicated that in certain circumstances the courts had inherent powers to disapply legislation.

I am worried that the Government do not appear to recognise that there is a real debate taking place on this issue between those who argue that the absolute supremacy of Parliament remains unqualified—as explained by Dicey, the British constitutional scholar—and those who believe that sovereignty of Parliament is a construct of common law. According to those who hold this view, the sovereignty of Parliament is open to revision by the courts. In the Bill’s explanatory notes, the notion of parliamentary sovereignty as a construct of common law is expressed as though it were a matter of fact and entirely uncontroversial. Similarly, a one-page note on the Bill produced by the Foreign and Commonwealth Office states:

“there is a common law principle that the UK Parliament is sovereign”.

It is dangerous to view the legislative supremacy of Parliament as an offshoot of common law, because it means that the principle will vary according to the judicial whims of judges at any given time.

[Mr Cash]

I am somewhat encouraged by the Opposition’s line of argument because, as I explained in my speech, my amendment 10, which deals specifically with excluding the common law principle, does not derive entirely from the explanatory notes but—as the hon. Gentleman has just reminded us, and as we knew from evidence to the European Scrutiny Committee—from the fact of judicial trends, which will not go away. Whatever happens to the explanatory notes, we are still left with a problem, and I believe that the Foreign Office has known this all along.

[Mr David]

The hon. Gentleman might well have a point. This is something that has to be looked at carefully. I am mindful of the fact that although we are in Committee today, this is not the end of the process. I am sure that we will return to the issue on Report.

It appears that the Government hold the view that parliamentary supremacy is a construct of common law. However, if that is the case, it could be argued that parliamentary sovereignty could be qualified by the courts and that this would not be opposed by the Government. Professor Tomkins, who has been referred to already, is the distinguished chair of public law at the university of Glasgow. He submitted extremely important written evidence before the European Scrutiny Committee and gave extremely significant oral evidence. Let me be clear: Professor Tomkins is not anti-European. He specifically said in his written evidence that he considered that

“it is in the United Kingdom’s clear interest to remain a committed member of the EU.”

However, he expressed his concerns to the European Scrutiny Committee about the supremacy of Parliament and common law as follows. Referring to the Jackson case, Professor Tomkins said:

“one of the things that that case most sharply and, to my mind, alarmingly indicates is that even our highest court, as was, is not sure what to do with parliamentary sovereignty. It isn’t sure what the legal basis for parliamentary sovereignty is. It isn’t sure how much parliamentary sovereignty is under challenge. It isn’t sure how much parliamentary sovereignty continues to represent the group ‘norm’ or the ‘bedrock’ or the ‘keystone’ of the constitution—all of those words are used.

The reason why the Jackson and the Attorney-General case is so long…is that so many of the judges who decided that case…wanted to use the case as a vehicle for the expression of a bewildering variety of different views about the past, present and future state of parliamentary sovereignty. The case, I think, is authority for not much, but it is authority for the proposition that we have the right to be concerned about what is going to happen to parliamentary sovereignty in the hands of the courts.”

That is a powerful statement, and all of us who believe in the importance and the supremacy of Parliament should take note.

As I have tried to argue, the Opposition believe that clause 18 is otiose and unnecessary. It is purely declaratory and merely reaffirms what is widely understood to be the legal and constitutional position regarding the application of EU law in the United Kingdom.

[Martin Horwood]

I am rather confused about the Labour Front-Bench position. Having apparently endorsed the fear that there is judicial mission creep, the hon. Gentleman now seems to be rejecting a clause that seeks to resolve that issue. What exactly is the Labour party suggesting? Would it propose an alternative clause, or would it prefer that the Bill did not exist? What is the Labour position?

[Mr David]

I am just coming to the amendment that we are proposing, which would allow an opportunity for the issues raised by the hon. Member for Stone and others to be considered in a rational and thoughtful way. In the spirit of generosity, we accept that others may have genuine doubts. That is why we tabled amendment 52, which would ensure that the Secretary of State made an annual report—[Interruption.] The Deputy Leader of the House has read our amendment. Well done. Amendment 52 would ensure that the Secretary of State made an annual report to indicate whether parliamentary sovereignty had been challenged or questioned in the British courts or the European Court of Justice. Our amendment spells out in clear terms the duality principle, whereby the law of the European Union is totally dependent on the European Communities Act 1972. We see such a report being presented to Parliament and being voted on annually.

[Martin Horwood]

With all due respect to the hon. Gentleman, I shall have to restate my question. I was not asking whether he was proposing a report to find out the Secretary of State’s position; I was asking him what the Labour party’s position would be. What would he want in that report? What would he expect?

[Mr David]

We would want an accurate reflection of what has been happening in the British courts and the European Court of Justice. I want to see the objective evidence presented to us. It is interesting that we have not heard from the Government in this debate as to whether there is more justification than what they have so far presented to us. I suspect that there is none, but there are many Conservative Back Benchers who believe that there is ample evidence. What I am saying is that there is certainly an indication that there are more things to be considered.

[Chris Heaton-Harris (Daventry) (Con)]

The hon. Gentleman will know from his time as leader of the Labour MEPs that for those of us who are concerned about sovereignty in the United Kingdom, there is another problem—the mission creep that is omnipresent in the European Parliament across most political groups, including the European socialist group, which is probably the worst in that respect. Does he not believe that if his amendment were to have any weight and value, it would be worth looking at mission creep from the European Commission and the European Parliament as well?

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[Mr David]

I am not sure what the “mission creep” that the hon. Gentleman is talking about really is. We have been talking about the sovereignty of the British Parliament, and we are pretty clear that the European Union exercises its powers through European law in this country by virtue of an Act of this Parliament. That is undeniable, and it is an important principle on which I hope every Member of the House would agree.

I fully appreciate that many Members of the House have sincerely held concerns. Although we would argue that some of those concerns are exaggerated, we should nevertheless have an annual review—an annual report, an annual debate and, yes, an annual vote. If it can be shown that the sovereignty of Parliament is being questioned or challenged in the courts, either at home or abroad, we will have a strong basis on which to act.

[Martin Horwood]

I am hoping that my persistence will pay off. The hon. Gentleman appears to be saying that on the one hand, clause 18 is otiose and, according to all the eminent sources to whom he has referred, that there is no particular threat to parliamentary sovereignty. However, he also seems to be conceding that there is some generalised concern, because he is calling for an annual debate and an annual report on the subject. Let me once again ask: what would the Labour party do? Would it also suggest such a clause? Is the hon. Gentleman suggesting that we should restate parliamentary sovereignty in statute or not?

[Mr David]

The hon. Gentleman is making hard work of this—or perhaps he is not listening as carefully as he might. Our starting point is that we would not have this Bill in the first place. We would be talking about the issues that really matter to the people of this country and the people of Europe. Nevertheless, we recognise that we are in the here and now. The Government have introduced the Bill, dedicating much parliamentary time to it, and, as a good Opposition, we are determined to make the best of it. We are simply saying that, on the face of it, there is no case for clause 18. However, we have respect for the concerns that have been expressed, both here and elsewhere. We are saying that we should be careful to take into account all the points that are expressed, clearly and effectively. However, let us not dwell on them on a one-off basis and make a definitive decision here and now; let us instead have an ongoing process, with an annual review and an annual report. Let us ensure that the Government are fully accountable to the House of Commons. That is a straightforward position.

[Mr Bone]

The hon. Gentleman is making a well-constructed speech, but I want to ascertain the official Opposition’s view on this. If they believe that clause 18 is superfluous and should not be in the Bill, does that mean that they will vote against clause 18 stand part?

[Mr David]

The hon. Gentleman will have to wait and see what the Opposition decide to do. As true democrats, one of the things that we want to do is listen to the debate. We are not entering into the exercise with a closed mind, and that is why we have tabled our amendment. We want to ensure that the debate does not finish here and now, but continues throughout the Bill’s progress through Parliament. I referred to Report stage earlier.

There is also the important issue of parliamentary sovereignty and all the complex ramifications involved. An ongoing debate has been started by the Government, but let us ensure that we have an annual debate on this matter in the House, based on a report produced by the Government. I very much hope that the House will accept our amendment. There may be different views on the conclusions that such reports would reach, but let us all recognise that the way to have an effective debate is to have an annual debate based on an annual report.

Many points have already been raised today, and I have listened carefully to the arguments, particularly those put forward by the hon. Member for Stone. I urge all colleagues to think carefully about supporting amendment 52. Clause 18, as it stands, means nothing from any point of view, but our amendment would make it far more meaningful. If our amendment is not successful, clause 18 will take us forward neither a millimetre nor an inch. As it stands, it is a bland restatement of a law that already exists. European Union law is enforceable in the United Kingdom only because of legislation made by this Parliament. That is a self-evident truth and, with or without clause 18, it will not be altered.

[Mr Redwood]

The Crown was sovereign once. It is intriguing that we are more than two hours into this debate but so far we have talked only about parliamentary sovereignty, even though the sovereignty technically still belongs to the Crown in Parliament. We all know about the events that took place over several hundred years, particularly when they were accelerated during the 17th century revolution and crisis. There was a large transfer of power from the Crown to Parliament. When a sufficiently large transfer of power takes place from someone who was sovereign to those who would be sovereign, a point is reached at which that sovereignty passes because enough power has been surrendered and the arrangements have changed sufficiently.

As other Members have suggested, we need briefly to look at how that very big transfer of power occurred in the 17th century from the Crown to Crown in Parliament and, in due course, effectively to Parliament standing on its own. One important factor was that Parliament was very good at aggregating power to itself. In those days, it decided to be very nice to bankers, which worked very well for it, because it got the City of London and the men of finance on its side. In those days, the English Navy did not have French ships in it, and Parliament made sure that it responded to the English Parliament. Parliament also took the precaution of hiring and training and paying—something quite unusual in those days—the best army in the country. It got over the problem of competing armies and, in due course, established that it had military power and could command the Army.

Parliament also needed to deal with the judges. It was established during the revolutionary period that judges were necessary and that, according to our current tradition, they had to be independent and should not interfere in parliamentary matters by trying to make the law. They simply had to deal with the law as Parliament provided it. We therefore eventually ended up with a very powerful Parliament.

In the 19th and 20th centuries, Parliament did something that everyone in the House is now united in admiring: it made the exercise of power by Parliament a democratic matter by extending the franchise until practically every adult in this country was able to participate in elections. That gave Parliament the authority of having a democratic voice and mandate. The question that we are debating today is whether that great democratic settlement, in which most Members believe, is now under threat from judge-made law, from European-made law and from other centres of power. Could parliamentary sovereignty come under pressure in the not-too-distant future? Is it being damaged because too much power is being transferred? These questions account for the nervousness, certainly on the Conservative Benches, about the degree of power that has already been surrendered by successive Parliaments over the years, particularly under the most recent Government following the treaties of Nice, Amsterdam and Lisbon. Under those treaties, a large number of areas were transferred either to joint decision taking or to sole European decision taking.

That means that the exercise of power in many important areas of activity, including regulation, the expenditure of money and the provision of public services, now emanates from the continent. Those powers are trying to establish their own democratic credibility through the European Parliament. They are also trying to establish their own judicial credibility through the European Court of Justice, and their own administrative credibility by strengthening the powers that are exercised around the various collective corporate tables that constitute the ever-evolving, and ever more powerful, European Union settlement.

The nub of our debate today is whether there is something that this Parliament could and should do, no matter how much power has passed, how many decisions are taken through the European Union and how much money it now takes to itself and spends on our behalf, to make it clear that, should we want those powers back, we can have them back. If we wish to change or moderate what the European Union is doing, do we have every right to do so because we are still the sovereign?

Some of us fought long and hard to keep the currency under British sovereign control. These arrangements involve a British sovereign and preserve the settlement of the Queen in Parliament, and the Queen’s face appears on the banknotes of the realm, but we all know that they are Parliament’s notes and that they represent an expression of parliamentary sovereignty. Indeed, it was this very Parliament that, by a majority, approved the previous Government’s decision to print a lot more of those notes—or electronic notes—as an expression of what that sovereignty can do for the people of Britain. We can argue about whether that was a good thing or a bad thing, but it was an undoubted expression of sovereignty.

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[Mr Clappison]

The amendments are not mine, although I would be happy to put my name to them. They were drafted after we received the evidence from the experts, and as a Select Committee member I believe that they are entirely consistent with what the experts told us. Other hon. Members might say more about that. The amendments would better meet the threat that was identified by the experts, for all the reasons that my hon. Friend the Member for Stone (Mr Cash) set out in his considered speech.

[Mr David]

I think that the hon. Gentleman is about to refer in detail to the amendments. Before he does so, will he tell us what the point was of the Government putting forward clause 18 in the first place if it does not meet their objectives, or his?

[Mr Clappison]

The hon. Gentleman would do as well to ask what is the point of his amendment. The gist of his speech was that the clause will achieve nothing and we are going to have a report on it every year saying how it has achieved nothing. This is not a party political speech, but I think that the Labour party could have produced something a bit better than amendment 52, which is just a marking-time amendment that gave the hon. Gentleman the opportunity to make a few random points, but does not deal with the problems that we face. To be fair to Ministers, they have tried to face those problems.

The clause does not sufficiently address the situation because it is a restatement of the existing position, under which the present challenges to parliamentary sovereignty have developed, as has been said. It does not go much further than what people were told before the referendum on the European Union in 1975, to which hon. Members have referred. Interestingly, the Labour party said that it would never have a referendum and yet it was the Labour party that put the issue to the people after the negotiations had taken place and after the country had joined. The people decided to stay in the European Union. I am sad to say that I am old enough to have taken part in that referendum, which probably makes me past it, as the BBC would say.

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

[Mr David]

The hon. Gentleman makes the point that there is absolutely nothing in the Bill—and no indication whatever from the Government either—to say that the Government do not accept the primacy of European Union law. That is the fundamental point that we are at. I therefore take his comments to be a direct challenge to what his Government are proposing. My second point is that we are also talking about the duality principle, whereby European Union law has effect in this country only because of an Act of this Parliament. That is our position.

[Mr Jenkin]

I think I am safe to agree with what the hon. Gentleman says, and that is why clause 18 is not a sovereignty clause, as he says. Therefore, if he agrees with everything that I am saying, I cannot quite understand why he does not want to make clause 18 a sovereignty clause. It would be quite easy to do so. I cannot for the life of me understand this. What could be less contentious than a declaration in the Bill that said, “The sovereignty of Parliament is hereby reaffirmed”? The idea that this would somehow open the issue of parliamentary sovereignty to judicial interpretation seems to me the daftest bit of legal advice of the lot. We make the statute and statute overrules everything, so if Parliament is sovereign and says in statute that it is sovereign, we clobber whoever challenges that; indeed—it is up to Parliament—we could actually sack the judge who tried to do that.

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[Mr David]

Just for clarification, is the Minister saying that there is a difference in legal opinion between the lawyers in the Foreign and Commonwealth Office and the rest of Government?

[Mr Lidington]

Certainly not. I am saying that we made sure we took legal advice from all the relevant Departments across Whitehall. The views I am expressing—what is in the Bill—reflect the legal advice that has been given, as well as the political decisions that Ministers have taken about what should be included in the legislation.

As I said on Second Reading, clause 18 is declaratory or, as my hon. Friend the Member for Dover said, it is a codification. The clause creates a statutory point of reference to which any future court that considers an argument about the source of authority for European law in this country must have regard. It reflects the dualist nature of our constitutional system, under which international obligations—including those assumed by the UK through our membership of the European Union—are not self-executing within the UK legal system. The fact that the UK is dualist means that European Union law is enforceable here only because this Parliament has legislated to make it so. The clause makes it clear that such European law has authority only by virtue of the fact that Parliament has, through its Acts, decided to import it into the domestic legal order.

In the event of any litigation arising where a party sought to claim that directly applicable or effective EU law had an autonomous legal existence in the UK, the other party would be able to counter that argument by referring to clause 18 and, similarly, judges would take this into account in addressing the arguments raised in their judgments.

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[Mr Lidington]

If one follows the logic that my hon. Friend and others have adduced this evening about the ambitions and activism of certain members of the senior judiciary, and if one considers the arguments that would be made by counsel and parties on both sides if a case were pleaded before a court—they would inevitably draw attention to the absence of any definition of parliamentary sovereignty—one sees that my hon. Friend underestimates the risk that the amendment would encourage judicial activism rather than provide an antidote to it. The concerns about definition apply to other amendments and new clauses, as well.

I wish to say a brief word about the explanatory notes, which have been mentioned in a number of speeches. I note that the European Scrutiny Committee’s report recommended that they should reflect the balance of opinion on the matter. As my right hon. Friend the Foreign Secretary said on Second Reading, references to the common law are meant simply as a contradistinction to statute, given that the principle of parliamentary sovereignty is defined nowhere in statute. They are not meant to be determinative of the origin of the principle, which goes far beyond the scope of the Bill.

Although I do not believe that one phrase in seven substantial paragraphs of the explanatory notes bears the weight that some of my hon. Friends have placed upon it, I will respond to the concerns that have been addressed. The coalition will amend the explanatory notes before the Bill enters the Lords, to address satisfactorily the concerns that the European Scrutiny Committee has raised. That will in no sense change the effect of the clause, which is couched in terms of the status of EU law in the UK legal order, and does not refer explicitly to parliamentary sovereignty or take a position on the origins of that principle.

[Mr David]

Given that the Minister had clearly agreed to change the explanatory notes before the debate, would not it have been courteous to tell the Opposition about his decision?

[Mr Lidington]

I have had no private conversations with my hon. Friend the Chairman of the European Scrutiny Committee—the hon. Member who expressed concern. The hon. Gentleman is in his place. Like every other hon. Member, he has had the opportunity to hear about the proposed change.

New clause 1 deals with section 3(1) of the European Communities Act 1972. By virtue of that Act, jurisdiction has been conferred on our courts to determine and adjudicate on disputes arising under EU law. That jurisdiction does not arise from the treaties, nor have the courts conferred it on themselves. Courts here possess that power because Parliament has determined that it is appropriate for them to do so and has legislated accordingly.

Section 3(1) of the European Communities Act provides that, for the purposes of legal proceedings in the UK courts, any question about the meaning or effect of the treaties is to be treated as a matter of law and requires the UK courts to take judicial notice of the treaties, the Official Journal and any decision of the European Court of Justice. Together with section 2, it is a cornerstone of the European Communities Act and, like the rest of the measure, subject to appeal or amendment by Parliament if we choose.

New clause 1 would restrict the exercise by the courts of their jurisdiction to interpret and address issues of EU law by ensuring that it does not extend to construction or interpretation by the courts of the nature or legal effect of parliamentary sovereignty.