The European Scrutiny Committee, of which I have the honour to be Chairman, has been holding inquiries into the fundamental constitutional implications of the Bill, including clause 5. As is now shown on its website, I have had correspondence with the Prime Minister on its behalf since December. The provisions I refer to would empower the courts, for the first time in our Westminster-based legislative history, to disapply Acts of Parliament. This is no theoretical matter. Indeed, we are advised that such disapplication is likely to apply to a whole range of enactments, including those relating to equality, terrorism, data protection and many other matters.
I raised this massive constitutional issue, as I regard it, in Committee on 14 and 21 November, including by reference to the authoritative statements made by the late Lord Chief Justice Bingham in chapter 12 of his book on the rule of law and the sovereignty of Parliament. Let us bear in mind that he is one of the most authoritative judges in recent generations. He says:
“We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law;”—
I repeat, “infringes the rule of law”—
“and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail”—
I repeat, “cannot fail”—
“to give effect to such legislation if it is clearly and unambiguously expressed.”
In that book, he publicly criticised the attitude of Baroness Hale, who is now President of the Supreme Court, and Lord Hope of Craighead for suggesting that the courts have constitutional authority as against an Act of Parliament.
Lord Bingham also specifically approved the analysis of what he described as the “magisterial” authority of Professor Goldsworthy, whom he quoted as follows:
“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional
system. The judges did not by themselves establish the principle and they cannot, by themselves, change it… What is at stake is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”
He went on to state that they—the judges—would then be transferring the rights of Parliament to themselves as judges. He says:
“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”
That is the basic principle.
Members of this House and the House of Lords, including former Law Lords and members of the Supreme Court, are themselves deeply concerned about—