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Legislative and Regulatory Reform Bill

Despite the rather drastic title that my noble friend has given this amendment, it is not about an argument with the European Union. As he made clear, it is simply a reminder to all of us that Parliament is sovereign. My noble friend wants to be sure that a Minister can bring in an order that does no more than is necessary to comply with European Union law, to ensure that there is no gold-plating and that the Minister can revisit powers that he or one of his predecessors might have made under the 1972 Act if he thinks that there has been gold-plating. My noble friend mentioned the droit de suite example, where we know that Ministers in the Department of Trade and Industry indulged in quite a degree of gold-plating. He then mentioned the recent issue of small boats under 10 metres, and the case of the two fishermen from Eastbourne; I think that is before the courts. The amendment raises the question of whether, as my noble friend put it, Parliament is sovereign, so that it can pass an Act—or, in this case, an order—that effectively disapplies the European CommunitiesAct 1972 on a case-by-case basis. Section 2(4) of the 1972 Act provides that past or future laws shall be construed and have effect subject to the provisions of that section. Section 2(1) of the 1972 Act incorporated all existing EU legislation into UK law, and, "““all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties””." The effect of the Act is that Community law takes precedence over United Kingdom legislation. The Factortame case, quoted by my noble friend Lord Waddington, resulted in a United Kingdom law being overruled by the European Court of Justice. I will not go into the details of that case now, but many have argued that if the United Kingdom legislation in question in that case had expressly disapplied the 1972 Act, it was still incumbent on United Kingdom courts to uphold the United Kingdom law because of the sovereignty of Parliament. The Government have always admitted that Parliament has power to repeal all or any of the Acts that give effect to European Union treaties, even if that would put us in breach of our treaty obligations. Perhaps the Minister will confirm that fact. I will not cite all the references, but, for example, in another place on 24 March 2004 the then Minister for Trade and Investment said as much. He said that, "““our position has always been … clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations””.—[Official Report, Commons, 24/3/04; col. 317WH.]" For the avoidance of doubt, the courts have also clearly expressed that. For example, in the so-called metric martyrs’ case, Thoburn v Sunderland City Council, Lord Justice Laws said: "““For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the Court would apply this test: is it shown that the legislature’s actual—not imputed, constructive or presumed—intention was to effect the appeal or abrogation?””." He went on to state that constitutional statutes, of which the European Communities Act is an example, could be abrogated only by unambiguous words in the later statute. So, given the judicial and ministerial unanimity about this principle, there is no reason not to accept the amendment tabled by my noble friend Lord Waddington. It merely puts the principle of parliamentary sovereignty, expressly stated, in this Bill. As I understand it, it would not change the current situation, but it would make clear where Parliament stands on our European Union obligations.