§ Mr. Iain Duncan Smith (Chingford)
I beg to move,That leave he given to bring in a Bill to amend the European Communities Act 1972 so as to provide by Order in Council for the disapplication within the United Kingdom of judgments, rules and doctrines propounded by the European Court.The Bill that I present today is a simple one. It would amend the European Communities Act 1972 and provide for a mechanism of an Order in Council which had been approved by the House to disapply specific judgments which this Parliament decided were not in the national interest.
I drafted the Act more than a month ago and, at the time that I raised it, we were on the receiving end of a bizarre European Court judgment on Spanish fishermen. But since then, we have seen the European Court throw out our painstakingly negotiated opt-out from the social chapter by imposing the 48-hour working week. I am sad to say that the terrible ban on British beef, which is tearing an excellent industry apart, will not be affected by the Act.
But European integration and the rulings of the European Court now have far-reaching implications, enabling British courts to overturn Acts of Parliament on which we in the House have no say. Yet despite all that, British citizens do not understand the driving ethos of the court. The European Court is a political court, and it sees its role as the architect of European integration. That fact has enabled our courts to throw out such legislation as that on part-time workers—which they did more than a year and a half ago.
In making its judgments, the European Court of Justice often divines the intentions of the Governments who signed it into being many years ago, which gives the court huge licence to make legislation that national Governments must obey. It so often does all of that by guessing at previous political intentions. In so doing, the court has changed general statements on such issues as sex equality or health and safety at work into powerful doctrines, and dramatically extended the power of Community institutions.
We are therefore witnessing a process of judge-made law that goes far beyond the traditional scope of the British national courts and cuts across the vital concept that law makers should be fully accountable to the electorate. Furthermore, once the court makes such a ruling, it has decreed that the relevant power is for ever lost to national Governments by the insidious doctrine of the occupied field.
The recent fishing decision is an excellent example of how this Act would operate. The European Court not only previously overturned a British Act of Parliament—the Merchant Shipping Act 1988—but went further. In the recent European case—Frankovitch—the court created yet a new doctrine: national Governments could be directly liable for damages caused by those who live and work in the Union.
The court applied that doctrine to the Spanish fishermen, yet the doctrine had not been agreed by Governments at an intergovernmental conference or written into the treaty. The court had simply decided that the doctrine was inherent in the treaty's scheme, and, as a result, the British Government may have to pay up to £30 million of taxpayers' money in compensation.
199 The doctrine adds to a common fisheries policy that now allows the Spanish to take a huge proportion of our fish quota, resulting in the demise of a once great British fishing industry. It is ironic that many of our European partners whose implementation of the judgments is much less thorough than ours have constitutional court mechanisms, yet we in Britain are without any such mechanism.
It is high time that this Parliament—which is to be and has always been the guardian of our constitution—was able to review those judgments, and, where necessary, seek to change them politically.
The Government have recently determined to get the fisheries decision changed at the IGC. Although I understand that we have not yet tabled any proposals, I expect—I am sure that we all do—that they will do so very soon. In the meantime, however, we cannot stop British courts ruling on the claims brought by Spanish fishermen. Thus, when the Government succeed—as succeed they must—in getting this judgment overturned, taxpayers' money will already have been spent unnecessarily, not to mention paying the costs of court time.
Parliament should act now to stop those cases going in front of the British courts. It should give itself the power to review not only the fishing judgment but other judgments as they arise, and to decide in each case the relevant course of action.
An Act such as this one would pass swiftly through the House, because hon. Members who oppose it would have to explain to the great British public why they prefer to have British taxpayers' money spent on ridiculous projects in which the British never acquiesced.
The constitutional court in Germany, for example, regularly reviews European Court judgments. It has even confirmed the German Bundestag's authority to decide whether it abolishes the deutschmark and enters a single currency at the turn of the century. That would, of course, breach European law, yet I do not remember anyone on the continent or over here murmuring defiance about the German constitutional court. The Germans had no opt-out in the treaty, but they gave themselves one.
The Germans are not alone. The French, under article 55, have the same power, as do other countries. Those constitutional courts have, in fact, gone even further, ruling in many cases that, when there is a dispute between European law and their own basic laws, their laws will prevail.
The British people have the right to ask why we should not at least be able to choose to exercise similar powers of revision.
Yet there is one thing that the Bill would do which seems to have caused even greater concern—the fact that I am proposing to amend the European Communities Act 1972. Although they will not do so publicly, some people—many of them judges—are saying quietly behind their hands that Parliament cannot amend that Act. They are even beginning to say that Parliament could not repeal the Act without first clearing it with our European partners. They argue that we sacrificed that power when we signed the 1972 Act.
I seem to recall, however, that, at the time of the referendum, the Father of the House, my right hon. Friend the Member for Old Bexley and Sidcup (Sir E. Heath), 200 made it quite clear that there was no question of handing over those sovereign powers. I prefer, as I am sure the House does, to be guided by the Father of the House. At the heart of the matter lies a serious misunderstanding of the 1972 Act, because nothing in the treaty we signed then defines our relationship with European law to that extent. It is the European Court, through its various judgments, that has widened its scope through a set of doctrines.
One doctrine is that individuals may invoke Community directives before national courts. That was the judgment in the Van Duyn case.
Another is that national courts cannot question the validity of Community instruments such as directives. That doctrine was set out during the Fotofrost case.
It also said, in the Van Gend En Loos case, that Community law had direct effect in creating individual rights.
Most remarkably, it said in another judgment that the Commission, when creating a directive, must choose an article covered by qualified majority voting, because that now takes precedence over any other article.
Those doctrines are propounded by the court; they are not in the 1972 Act or the amendments to it. It is the court that has legislated. That is not the rule understood since the Restoration in the United Kingdom, where laws have been made and crafted by Parliament, scrutinised line by line, opposed by an official Opposition and then handed to the judiciary for application.
At stake is whether Parliament can make, break or amend its own Acts of Parliament, and whether, entrusted with British rights and freedoms, we are content to do that, or hand over those powers bit by bit to Brussels. We now have an opportunity to put a political court, and what has become political law, in context.
There is a growing realisation among our constituents that we have become supine and powerless because we have chosen to be so. We have before us a mechanism that perhaps enables us at last to question and challenge that. If we do not, how much respect should our constituents afford us? Why should they believe us when we shed crocodile tears for the detrimental effects on their livelihoods, but do nothing? I therefore urge all hon. Members to stay to vote for the Bill. There is no time to act but now—let us seize the moment and pass the Bill.
§ Mr. Charles Kennedy (Ross, Cromarty and Skye)
I oppose the Bill, and begin by referring to the position of the Executive. I see that the Minister of State, Foreign and Commonwealth Office, who is representing our interests—God help us—at the intergovernmental conference, is here, which I welcome.
The hon. Member for Chingford (Mr. Duncan Smith) failed to deal with the Government's rather sensible proposals in respect of the European Court of Justice and what line the Government will pursue in the context of the intergovernmental conference discussions in the coming months. In this instance, I support the position of the Government and the Minister, not that of the hon. Gentleman. Clearly, the Government themselves will want to oppose the Bill, as it goes so clearly and categorically against their own position as outlined in the White Paper that we debated only a few weeks ago.
201 The hon. Gentleman made a characteristically cogent and fair-minded case. None the less, there is a sense in which the Conservatives are bad losers, and we are seeing that in the Conservative party's domestic track record as much as in its European track record. These days, there is a more widespread attack on the judiciary generally. The Government have only themselves to blame, because, since 1979, legislation has repeatedly given more power to Ministers, and that power has been subject to judicial review. The result of that judicial review has often gone against the decisions of the Ministers in question.
The Conservatives are nothing if not consistent. They are showing dismay not only because they are being caught out by the courts in this country but because, increasingly, they are also being caught out by the courts at European level. That is what this attack is all about, and that is why the House should reject it.
First, what about the position of the companies that would be victims of protectionist legislation from the rest of Europe if we passed the Bill, and if we enjoyed no right—no guaranteed say—in the influencing of European law? Two companies, Ladbroke and British Petroleum, currently have important cases before the European Court. They have taken up those cases on the basis of competition policy. If they win—I hope they will—they will expect the rules to stick, but the rules would not even have a chance of being implemented in our favour or interpreted legally if the Bill were passed. Where British interests and British companies are concerned, the legal framework of the European Union is a strength rather than a weakness.
Then there is the charge of hypocrisy. I might not level that charge at the hon. Gentleman, but it can certainly be attached to the Government. The Government are rightly making the case against the European Union ban on British beef—we heard about that again from the Prime Minister this afternoon—but how are they pursuing that case? Via the European Court of Justice. That is a classic example of wanting to have your cake, or your beef in this instance, and eat it. When it suits them, the Government are willing to use the facilities available to them from the European Court; when it does not suit them, they are willing to tear up the entire basis of it, as the hon. Gentleman wants to.
Both in his speech and in a newspaper article published today, the hon. Gentleman has argued that the rulings and legal interpretations of the European Court are somehow at fundamental variance with the British approach. I think that he is wrong, and that his interpretation is misguided. In fact, the European Court's rulings conform to exactly the same pattern as those of the British courts. For example, British courts' rulings can be retrospective if the courts so wish. Moreover, the European Court has shown sensitivity in stating that in, for example, the Barber case involving pensions, the ruling should be prospective.
Attacks such as this suggest that the European Court has nothing to do with us—that it is composed of a bunch of people over there that does not include us. Here is the curriculum vitae of Francis Geoffrey Jacobs, appointed by the British Government to the European Court of Justice.
He was a lecturer in jurisprudence at Glasgow university between 1963 and 1965, a lecturer in law at the London school of economics between 1965 and 1969, a member of the secretariat of the European Commission of Human Rights and the legal directorate of the Council of 202 Europe between 1969 and 1972—[Interruption.] I do not know why Conservative Members are heckling. Their Government made the appointment; it was nothing to do with the rest of us.
Mr. Jacobs was Legal Secretary at the European Court of Justice between 1972 and 1974, professor of European law at London university between 1974 and 1988, and Advocate-General at the European Court of Justice between 1988 and 1995, and has been First Advocate-General since 1995. Clearly, he is someone who just does not know what he is talking about in regard to the rule of law.
So many of the decisions that are not to the liking of the present Administration are unanimous, and have the endorsement of both the learned gentleman to whom I have referred and his predecessor, Lord Mackenzie-Stuart, who served as President of the European Court. That in itself should prompt us to ask why, if we do not take it seriously—as the hon. Gentleman does not want us to do—we are appointing someone of such legal distinction to the office in the first place.
The Conservatives should come clean. If they want us out of Europe, to which the passing of the Bill would be tantamount, they should say so. They do not have the guts to say that, and if they are not prepared to come clean with the House, the House should not be prepared to give this nonsensical Bill a Second Reading.
§ Question put, pursuant to Standing Order No. 19 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of public business):—
§ The House divided: Ayes 77, Noes 83.203
|Division No. 103]||[15.49 pm|
|Arnold, Jacques (Gravesham)||Lennox-Boyd, Sir Mark|
|Baker, Rt Hon Kenneth (Mole V)||Lloyd, Rt Hon Sir Peter (Fareham)|
|Beggs, Roy||Lord, Michael|
|Bendall, Vivian||Marland, Paul|
|Biffen, Rt Hon John||Marlow, Tony|
|Booth, Hartley||Marshall, John (Hendon S)|
|Boyson, Rt Hon Sir Rhodes||Martin, David (Portsmouth S)|
|Brazier, Julian||Mills, Iain|
|Budgen, Nicholas||Moate, Sir Roger|
|Butcher, John||Molyneaux, Rt Hon Sir James|
|Carlisle, John (Luton North)||Montgomery, Sir Fergus|
|Carrington, Matthew||Neubert, Sir Michael|
|Carttiss, Michael||Nicholls, Patrick|
|Cash, William||Nicholson, David (Taunton)|
|Clark, Dr Michael (Rochford)||Paisley, The Reverend Ian|
|Coombs, Anthony (Wyre For'st)||Pawsey, James|
|Dover, Den||Porter, David (Waveney)|
|Duncan Smith, Iain||Redwood, Rt Hon John|
|Dunn, Bob||Riddick, Graham|
|Field, Barry (Isle of Wight)||Roberts, Rt Hon Sir Wyn|
|Forsythe, Clifford (S Antrim)||Robinson, Peter (Belfast E)|
|Gale, Roger||Rowlands, Ted|
|Gardiner, Sir George||Rumbold, Rt Hon Dame Angela|
|Gill, Christopher||Shaw, David (Dover)|
|Gorman, Mrs Teresa||Shepherd, Richard (Aldridge)|
|Greenway, Harry (Ealing N)||Shore, Rt Hon Peter|
|Hamilton, Neil (Tatton)||Skinner, Dennis|
|Harvey, Nick||Spearing, Nigel|
|Hawksley, Warren||Spicer, Sir Michael (S Worcs)|
|Hunter, Andrew||Steen, Anthony|
|Jessel, Toby||Sweeney, Walter|
|Lamont, Rt Hon Norman||Tapsell, Sir Peter|
|Lawrence, Sir Ivan||Taylor, Rt Hon John D (Strgfd)|
|Legg, Barry||Tracey, Richard|
|Tredinnick, David||Wilkinson, John|
|Trimble, David||Wilshire, David|
|Twinn, Dr Ian||Winterton, Mrs Ann (Congleton)|
|Walker, A Cecil (Belfast N)||Tellers for the Ayes:|
|Walker, Bill (N Tayside)||Mr. Nicholas Winterton and|
|Wardle, Charles (Bexhill)||Mr. Michael Brown.|
|Allen, Graham||Jamieson, David|
|Anderson, Donald (Swansea E)||Jones, Barry (Alyn and D'side)|
|Ashby, David||Jones, Jon Owen (Cardiff C)|
|Ashdown, Rt Hon Paddy||Jones, Martyn (Clwyd, SW)|
|Barnes, Harry||Kennedy, Charles (Ross,C&S)|
|Barron, Kevin||Kennedy, Jane (L'pool Br'dg'n)|
|Beith, Rt Hon A J||Khabra, Piara S|
|Bottomley, Peter (Eltham)||Kirkwood, Archy|
|Brown, N (N'c'tle upon Tyne E)||Knox, Sir David|
|Bruce, Malcolm (Gordon)||Llwyd, Elfyn|
|Burden, Richard||McCartney, Ian|
|Chidgey, David||McGrady, Eddie|
|Chisholm, Malcolm||Mackinlay, Andrew|
|Clarke, Eric (Midlothian)||McLeish, Henry|
|Corston, Jean||McNamara, Kevin|
|Cunningham, Jim (Covy SE)||MacShane, Denis|
|Dafis, Cynog||Maddock, Diana|
|Darling, Alistair||Mahon, Alice|
|Davidson, Ian||Maxton, John|
|Davies, Chris (L'Boro & S'worth)||Meale, Alan|
|Donohoe, Brian H||Michael, Alun|
|Dowd, Jim||Miller, Andrew|
|Dykes, Hugh||Monro, Rt Hon Sir Hector|
|Etherington, Bill||Morley, Elliot|
|Ewing, Mrs Margaret||Morris, Estelle (B'ham Yardley)|
|Faulds, Andrew||Pickthall, Colin|
|Flynn, Paul||Pike, Peter L|
|Foster, Don (Bath)||Pope, Greg|
|Foulkes, George||Prentice Bridget (Lewisham East)|
|Godman, Dr Norman A||Radice, Giles|
|Golding, Mrs Llin||Rendel, David|
|Griffiths, Win (Bridgend)||Roche, Mrs Barbara|
|Henderson, Doug||Rooney, Terry|
|Hendron, Dr Joe||Sedgemore, Brian|
|Hill, Keith (Streatham)||Steel, Rt Hon Sir David|
|Hodge, Margaret||Tipping, Paddy|
|Wareing, Robert N|
|Hogg, Norman (Cumbernauld)||Wicks, Malcolm|
|Hoon, Geoffrey||Wigley, Dafydd|
|Hughes, Kevin (Doncaster N)||Worthington, Tony|
|Hughes, Robert G (Harrow W)|
|Hughes, Simon (Southwark)||Tellers for the Noes:|
|Hutton, John||Mr. James Wallace and|
|Jackson, Helen (Shef'ld, H)||Mr. Nigel Jones.|
§ Question accordingly negatived204
§ Mr. George Foulkes (Carrick, Cumnock and Doon Valley)
On a point of order, Madam Speaker. Is it in order to point out that the Secretary of State for Defence and the Secretary of State for Scotland sat through the entire speech of the hon. Member for Chingford (Mr. Duncan Smith), obviously wishing desperately that they could join him in the Lobby?