The EU Bill: Parliament, judges and the national interest

Ahead of the vote on vital sovereignty amendments to Clause 18 of the EU Bill on 11 January, Bill Cash MP and Bernard Jenkin MP and others issued the following Memorandum.

Summary of points

• The Sovereignty of Parliament is the democratic basis of the UK constitution but has become increasingly questioned by judicial assertions (see below).

• Prior to the election, the Prime Minister made clear the need for a “Sovereignty Bill”, and to restrain “unaccountable judges”. • Clause 18 of the EU Bill is not a “sovereignty clause”. It would undermine Parliamentary Sovereignty, by encouraging judicial supremacy. • The government’s Notes on the EU Bill, which the courts can and would use, advance the dangerous notion that Parliamentary Sovereignty is a “common law principle”, and therefore subject to judicial authority.

• This reflects the influence of those including certain academics and judges and the Liberal Democrat wing of the coalition, because they support a written constitution which would entrench judicial supremacy.

• An exchange of letters between the PrimeMinister and the Chairman of the European Scrutiny Committee, Bill Cash, (attached) fails to provide any reassurance on these points. It is therefore urgent that Parliament reaffirms its Sovereignty as a legal and historical fact by voting for Bill Cash’s amendments.

• Bill Cash, and others, have tabled two linked amendments to translate the inadequate Clause 18 into a sovereignty clause, firstly, by expressly reaffirming the sovereignty of Parliament, and, second, by precluding the courts or the Supreme Court from invoking any common law principle under Clause 18.  

The Sovereignty of Parliament: the basis of the UK Constitution: under threat 

The sovereignty of Parliament is the most important principle of the United Kingdom constitution. This has been the case since the Revolution of 1688 and has been confirmed since by numerous writers, not least Blackstone and Dicey. The greatest judge of our time, the late Lord Bingham, re-confirmed it in his authoritative judgment in the Jackson case in 2005, when he stated that ‘the bedrock of the British constitution is… the supremacy of the Crown in Parliament’.

Yet, the sovereignty of Parliament is in the gravest danger. Not all of our judges agree with Lord Bingham, and they have said so plainly. In the same Jackson case, Lord Hope (now Deputy President of the Supreme Court, no less) said that ‘parliamentary sovereignty is no longer…absolute’. He added that ‘step by step’ it ‘is being qualified’. In his view, it is now the ‘rule of law enforced by the courts’ that is ‘the ultimate controlling factor on which our constitution is based’. Moreover, in Jackson Lord Hope was not alone: two further law lords agreed with him, including one (Lady Hale) who remains on the Supreme Court alongside him.

The sovereignty of Parliament is under threat, however, not only from the common law radicalism of judges such as these, but also from EU law (which has always regarded itself as having supremacy over the domestic law – including the domestic constitutional law – of the Member States); from European human rights law, which is growing and growing in prominence throughout our legal system.

It is important to be clear as to what is at stake. The sovereignty of Parliament is not merely some arcane matter of dusty constitutional curiosity. It is the very root of British democracy and is at the root of the daily lives of every elector. Its protection by Members of Parliament is an absolutely fundamental duty and to their role on behalf of their constituents. A threat to parliamentary sovereignty is a threat to democracy itself. Parliamentary sovereignty means that the last word in determining matters of public policy lies with Parliament. Removing sovereignty from Parliament means that some other body will have the last word instead. Irrespective of whether this other body is the European Union, the UK Supreme Court or the European Court of Human Rights, it is clear that if we wish to preserve our democratic heritage, it is imperative that sovereignty remains with Parliament. It is our only elected body. There is a chronic democratic deficit in the European Union, and no-one elects judges in this country (and nor should they be: judges are appointed to determine questions of law, not to govern us politically).

Sovereignty, therefore, is about power. And the most beautiful and precious thing about the British constitution is that it gives ultimate power to the people’s democratically elected representatives in Parliament. Not to courts. Not to international bodies such as the EU. But to elected representatives on behalf of the voters. This, constitutionally, is what makes Britain a democracy. Take it away, and you strike at the very root of British democracy itself and the freedom of the voters to choose who governs them and how, for which people have fought and died.

The need for a Sovereignty Bill: the words of David Cameron

Before the election David Cameron made it clear that it would be his intention to safeguard, indeed to buttress, parliamentary sovereignty. Two Bills were promised: a Referendum Bill to ensure that the UK could not transfer yet further powers to the European Union without both Parliament and the people positively voting for it; and a Sovereignty Bill. In his speech, ‘Giving Power Back to the People’ (given at Imperial College on 25 June 2009), David Cameron said this: ‘Because we have no written constitution … we have no explicit legal guarantee that the last word on our laws stays in Britain…So, as well as making sure that further power cannot be handed to the EU without a referendum, we will also introduce a new law, in the form of a United Kingdom Sovereignty Bill, to make it clear that ultimate authority stays in this country, in our Parliament.’ The Coalition Agreement likewise talked of a ‘United Kingdom Sovereignty Bill to make it clear that ultimate authority remains with Parliament.’ In a further speech on 8 February 2010, ‘Rebuilding Trust in Politics’, David Cameron also stated:

“We will push power down not just from the Government to Parliament but from Whitehall to communities, from the state to citizens, from Brussels to Britain, from judges to the people…”

And we need

“to strengthen the place of Parliament at the heart of our democracy, I believe we should be increasing its powers over unaccountable bodies. We will make sure there is proper Parliamentary scrutiny of everything that comes out of the European Union - the laws, the regulation, the spending, the lot.” 

The Prime Minister’s present rejection of the European Scrutiny Committee report flies in the face of this statement. Furthermore, in the same speech he says,

“…we would claw back powers from the EU and make sure no future government can ever give powers away in future without first asking the British people. And it’s why we will abolish the Human Rights Act and introduce a new Bill of Rights, so that Britain’s laws can no longer be decided by unaccountable judges.” 

The same applies in the context of this European Union Bill. The preelection understanding that two Bills would be required to achieve this was correct and sensible, for the reason that the EU is far from the only current threat to parliamentary sovereignty. The sovereignty of Parliament needs safeguarding not only from the EU but also from our own judges.

Clause 18 of the EU Bill: not a “sovereignty clause”: the Notes on the EU Bill 

The Minister for Europe claimed in his evidence to the European Scrutiny Committee that the agreed “Bill is being introduced by the means of Clause 18”. However, As the European Scrutiny Committee unanimously points out, Clause 18 certainly is not a Sovereignty Bill and on the evidence is not a sovereignty clause. Clause 18 is expressly stated to be no more than a declaration about the “Status of EU law”.

Unfortunately, the wrong signal which this Bill is sending to the courts is amplified by the misrepresentations and distortions of case law contained in the Bill’s Explanatory Notes. These state that the basis of the principle of parliamentary sovereignty is the common law. It is not. The Committee described this as “dangerous”. The common law is the judge-made law of this country. The judges are its authors and its guardians. They may change it whenever they judge that it should be changed. The sovereignty of Parliament should not be understood to be a common law principle. To understand it in this way would mean, of course, that the judges would be free to change it whenever they judged it appropriate to do so. As the greatest judges have long since recognised, however, they do not have this freedom.

Is this the Coalition Effect? 

It is ironic that a Conservative PrimeMinister should be willing to place parliamentary sovereignty in such jeopardy, or to pursue a policy deliberately devised to promote Liberal Democrat ideology. The Coalition attitude to parliamentary sovereignty, judicial supremacy and the EU is part of the disastrous constitutional revolution which is underway. The Liberal Democrats have never troubled themselves to seek to defend parliamentary sovereignty. It is their policy is to destroy it. They seek not only a federal Europe, but also a written constitution for the United Kingdom: a written constitution would be a legal document, enforceable by the courts destroying parliamentary sovereignty and replacing it with judicial supremacy.

The exchange of letters with the Prime Minister 

Bill Cash wrote to the Prime Minister on 13th December, who replied on 5th January (letters attached). Throughout his letter, the Prime Minister avoids the fundamental constitutional issue. Given the European Scrutiny Committee’s report and the debates in Parliament, there can no longer be any doubt but that the Government are fully apprised of the risks they have created by the partial drafting of Clause 18 and the misleading nature of the Explanatory Notes.

His suggestion that the Foreign Secretary, the Minister for Europe and the Prime Minster agree on the need to assert and defend the sovereignty of Parliament is not supported by the facts of Clause 18 of the Bill or by the Prime Minister’s own words. The PM states that all the Conservative ministers were “very much aware during the course of the preparation of the EU Bill of the need to avoid undermining Parliamentary sovereignty”. However, he also makes clear that there was never any intention to provide an all embracing doctrine of parliamentary sovereignty. In any case, this does not address the fact that this Clause as a matter of UK constitutional law, in the context of EU law, does undermine parliamentary sovereignty.

The PrimeMinister’s reply therefore again makes the situation worse. His letter shows how that the whole matter has been misconceived and opens the gateway to the Supreme Court undermining parliamentary sovereignty.

Having said, first, that Britain needs a Sovereignty Bill to safeguard Parliamentary sovereignty in the round and, then, to retreat so publicly to the meagre offerings of Clause 18 sends as clear a signal to the judges as it would be possible to concoct that this Government is relaxed about the current questioning of Parliamentary sovereignty. This is precisely the opposite of the signal that the Government should be sending. And it is precisely the opposite of the signal that David Cameron indicated he would send in his speeches of June 2009 and February 2010 (above).

The Government have either been gravely misled or they truly believe that the sovereignty of Parliament is a common law principle. The blunder has been pointed out to them yet the PrimeMinister seeks to resist making a correction, asserting that the issue “goes far beyond the scope of this Bill”. The letter to him of 13th December was couched in terms indicating that he must have been given bad advice. However, his reply does not deal with this and his Government’s course could not be more dangerous – unless of course the Government is prepared to accept the amendments put forward as set out below.

In the last paragraph of his letter of 5th January, the Prime Minister states that he noted with interest Bill Cash’s amendments for the Committee stage and “we will consider these proposals carefully and they will properly be debated” and in a hand-written note added that he would come back on specific amendments later. The vote however is on Tuesday 11th January and voting for the amendments is essential.

The Amendments

The amendments would translate the inadequate Clause 18 into a sovereignty clause firstly, by expressly reaffirming the sovereignty of Parliament, and, second, by precluding the courts or the Supreme Court from invoking any common law principle under Clause 18. These amendments have been on the Order paper for the best part of a month. The only conclusion to be drawn from the Prime Minister’s reference to the amendments suggests that everything will turn on the votes on the Committee stage on Tuesday 11th January.

Currently, we have a Supreme Court in name only. The grave danger of this Bill is that it will result in the UK having a judiciary that really is supreme: a judiciary that can quash or set aside Parliament’s legislation. At least two current members of the Supreme Court indicated in the Jackson case that they would welcome such a move. And with it, three hundred years of British constitutional law and history will be swept away, as we wave our once-cherished parliamentary democracy goodbye and journey into the age of Rule by Judges.

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