House again in Committee.
121: After Clause 2, insert the following new Clause—
“Supremacy of United Kingdom Parliament
Nothing in this Act or the Treaty of Lisbon shall affect or be construed by any court in the United Kingdom as affecting the supremacy of the United Kingdom Parliament to make or unmake laws or regulations applicable in the United Kingdom.”
The noble Lord said: In the absence of my noble friend Lord Blackwell, it might be appropriate for me to talk to my Amendment No. 130A, which is the last in this group. I am very disturbed because my colleague in this matter, if I may so call him, the noble Lord, Lord Neill of Bladen, is not yet present, but he will be here shortly. I should say now that he has already given me some very wise advice. My advice is that noble Lords should pay a lot more attention to what he says than to what falls from my lips if there is any difference between us.
I start with the well known case of Thoburn v Sunderland City Council, which is relevant to this matter. In that case, Lord Justice Laws referred to the European Communities Act 1972 as a constitutional statute, but that does not mean that it cannot be repealed or disapplied in part by clear words in a later Act. With the 1972 Act, there was, in the words of Lord Bridge of Harwich in the Factortame case referred to by the noble Lord, Lord Lester of Herne Hill, a voluntary surrender of sovereignty, but what has been given can be taken away, and that was made clear in another case referred to by the noble Lord, Lord Lester of Herne Hill, McCarthys Ltd v Smith. I quote from Lord Denning:
“If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty—
that is, the treaty of the European Union—
“or any provision in it or intentionally of acting inconsistently with it, and says so in express terms, then I should have thought it would be the duty of our courts to follow the statute of our Parliament”.
There are other passages in the Thoburn judgment which make one wonder whether this will always be the view of our courts. It therefore seems that if we do not soon assert that our Parliament can still pass laws inconsistent with our obligations under the treaties—and if we do not, in fact, pass any such laws—we will sooner or later lose the right to do so. It is a matter of great regret.
Is the problem not that we have incorporated European law into the domestic law of the United Kingdom, and the only way to go against it is to repeal the 1972 Act which did that? It is not a question of looking into the future as to what further matters may come up, and Parliament taking a different view. We would have to go back to the 1972 Act and repeal it, taking it out of domestic law.
I am following the exact words used by Lord Denning, who said:
“If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it, and says so in express terms, then I should have thought it would be the duty of our courts to follow the statute of our Parliament”.
In other words, if we were to state in absolutely explicit terms that it was our intention to legislate, knowing full well that it was inconsistent with the 1972 Act, the courts would accept that and would not attempt to say that the Act of Parliament in question was of no effect. I am sure that is exactly what Lord Denning said. There is no doubt; I have quoted the words twice.
I do not accept that for one moment. It is absolutely plain at the present time, although I would add the caveat that things could quickly change because certain passages in a recent judgment by Lord Justice Laws suggest that things are changing and that the time will come when the courts will say that the European Communities Act 1972 has a special character and is an Act of such constitutional significance that nothing can be done about it. I am talking about the law as it is now. If the law now is the law as stated by Lord Denning, I am right and, with the greatest respect, the noble Lord is wrong.
I see that the noble Lord, Lord Lester, wishes to intervene and I shall be delighted to give way to him. I am very conscious of the fact that I was rather discourteous to him the other night, which I put down to overexcitement, deafness and the knowledge that the House wished to come to a conclusion. But that makes me doubly glad to give way to him now.
I am very grateful. I am tempted to quote from “A Midsummer Night’s Dream” and say that the noble Lord is as wise as he beautiful. But I shall not do that, because it might be considered improper.
Whatever Lord Denning said in this House as a parliamentarian is not the law. The law is what is stated in the Appellate Committee by the Law Lords. As I attempted to say briefly, it is absolutely clear beyond argument, not only in Lord Denning’s Court of Appeal in the case of McCarthys v Wendy Smith, he made the supremacy of European law absolutely plain, but he also set aside in that case the part of the Equal Pay Act that conflicted with an equality directive, and explained why. In Factortame, Lord Bridge for a unanimous House of Lords displaced the discriminatory provisions of the Merchant Shipping Act and explained why. In the EOC case, another Appellate Committee displaced the provisions of an old employment protection Act as being inconsistent.
In all those cases, they explained the relationship, not in this House as parliamentarians, but as our final court. All that they said echoed similar judgments by the European Court of Justice. If Lord Denning in advanced years began to say political things here, they are not of the same judicial weight as when he acted as a judge. When he acted as a judge in the Court of Appeal, he made it absolutely clear. I suggest that one should focus on what he and the House of Lords said as a court, and the European Court of Justice. All of them said exactly the same thing. With respect, it is hopeless to suggest that there is any lack of clarity.
The position is that our sovereign Parliament has agreed, exercising its sovereignty, that so long as we remain members of the European Community/Union where European Community law reigns, in the sense that it applies in a particular area, any inconsistency in legislation or judicial decision or administrative action must give way. It is also clear that no member state can reply on its own constitutional order as an excuse for doing anything inconsistent with the paramount law of the European Community, now the European Union. Perhaps I may say that all that is now in any law school regarded as absolutely straightforward for any law student.
If Lord Denning is looking down on us he would be very displeased to hear that his utterances were political, because they were nothing of the sort. What the noble Lord is saying is based on his belief that the European Communities Act has already acquired a special status and is quite unlike any other Act of Parliament except, perhaps, the Bill of Rights. I do not accept that. If one takes the view that what one Parliament can do another can undo, and that an Act of Parliament is an Act of Parliament is an Act of Parliament, I am right and the noble Lord is wrong. But let me continue with what I have got to say.
It is a matter of enormous regret that with every day that passes it looks less and less likely that this House will do its duty and insist on the Members of the other place honouring the promises they all made to their constituents that there would be a referendum on the matters originally in the constitutional treaty and now in the treaty of Lisbon. If people are going to break their promises to their constituents—and are encouraged to do so by Members of this House—there should be some kind of safety valve to deal with the situation which will then arise.
If there is no referendum, it is not altogether unlikely that after the next general election there will be returned to Parliament a party with a clear mandate to renegotiate parts of this treaty, and that in office there will be a Government in a position to secure the passage through Parliament of legislation which reflects the people’s wishes—which they have not so far been allowed to express and which Members of this House seem determined to prevent them expressing—but which may be inconsistent with the 1972 Act and our treaty obligations.
The consequence of that would not be our departure from the EU but a renegotiation, with the other members probably recognising that for trade reasons alone—Britain being a far more valuable trading partner for them than Europe is for us—it would be to their advantage to try to meet Britain’s concerns and keep it within the fold. We would be in a very powerful negotiating position if by then we had secured the passage through Parliament of legislation removing from British law the obligation of which we and the British people believe we should be free. We would be in a much weaker negotiating position if no such legislation had been passed by our Parliament; and we would be in a still weaker position if legislation had been passed which our courts had found of no effect.
Perhaps the noble Lord can answer a question which I have asked in another context: why did the Governments of which he was a Member, who negotiated and ratified treaties of much greater import than this one, not introduce a clause of this kind into the legislation when they were passing it through Parliament if he feels it was so important? Secondly, now that the Lisbon treaty will contain a provision for withdrawal, would it not be dishonest and dishonourable for a Government to legislate unilaterally when there was a perfectly good procedure in the treaty under which they could get into the position the noble Lord wishes by notifying their partners that they wished to withdraw from their legal obligations and cease to be a member of the European Union? If you were not prepared to do that, then you really would be in a weak negotiating position.
I have three points to make. First, during all the great debates upon Maastricht I was not a Member of the Government. If I had been, I might have given the Government of the day some very good advice; it would be the same as the advice that I give to this Government. There are times when it is a very good thing to get this out of the system and to allow people to let off steam. If we had had a referendum on Maastricht it would have avoided many of the problems which followed thereafter. But it is quite ridiculous to compare the situation over Maastricht with the situation today. I cannot remember the Conservative Government promising the people a referendum and then ratting on it. The point here is that this Government promised a referendum and are ratting on that obligation.
That is the answer to the points made by the noble Lord except to say that I am not advocating now leaving the European Union. I am merely stating certain things which it would be wise to do to make sure that if we were to enter into renegotiations we would be in a much stronger position than if we had not been able to legislate to undo that which has been done in this treaty without the consent of the British people and with the collusion of Members such as the noble Lord who has just spoken.
The noble Lord is entirely missing the point. I am not saying that a person is not entitled to take the view that a referendum is a bad instrument for dealing with circumstances such as that; I am saying that we should all agree that Governments, when they promise referendums, should honour their promises. That is the issue before this Committee. I am rather ashamed by people’s denial that that plain obligation should be carried out.
That does not seem to be the issue that arises in the amendment, which appears to envisage a process of renegotiation. How does the noble Lord see that going? I presume that the renegotiation would be of some of the terms of the treaty of Maastricht, to which he and his friends have objected. At the first European Council, the new British Prime Minister would say, “The chair should please get out, because we don’t agree that there should be a permanent chair. It would be helpful, therefore, if we looked back in the alphabet and decided who, on the rotation of the chairs, should now be in the chair of this European Council”. Let us suppose that the others do not agree. One of the distinguishing marks of a treaty renegotiation is that, although anybody can ask for one, it takes unanimity to open it. Does the noble Lord think that all the other members of the European Union, having ratified the treaty—presumably because they think that it contains some quite good things—would agree that the treaty should be reopened because the British Prime Minister, in the situation described, asked for it?
I do not think that the noble Lord behind me can intervene on an intervention by the noble Lord opposite. Let me deal with one load of trouble at a time.
I have an awful feeling that this debate will go on a lot longer than I ever intended. It was not me who opened up all the questions raised by the noble Lord, Lord Hannay; he raised the matters and I responded to them. I have an awful feeling that if I am too generous in my reply to him, I will be very unpopular, so let us get on with the proposition that I am advancing, which is simply this: if there is no referendum, it makes it that much more likely that there will be returned to Parliament a party with a clear mandate to renegotiate parts of the treaty, and that in office there will be a Government in a position to secure the passage through Parliament of legislation which reflects the people’s wishes. If a party had a clear mandate to renegotiate, it would be pretty fruitless to enter a renegotiation unless we had put down a few markers and said, “This is the part of the treaty to which we objected. This is the part of the treaty which was never put to the people. We have passed legislation in the English Parliament making sure that the social chapter is to be repealed”. The consequence of that process might be success or failure, but that is entirely irrelevant so far as the amendment is concerned. Quite simply, this amendment, which I would have moved in far shorter terms had I not been so generous to all those who have intervened, is designed to make sure that, in the circumstances that I have mentioned, our courts would accept the right of Parliament to legislate even when the legislation was in conflict with the 1972 Act. They certainly would not treat the legislation as being other than of no effect if there had not been a clear statement of the intention of Parliament that such legislation should override the 1972 Act. That is the simple purpose of the amendment. I beg to move.
[Amendment No. 122, as an amendment to Amendment No. 121, not moved.]
When I first came to this Chamber, experts such as the noble and learned Lord, Lord Slynn, on my left were not present. The noble Lord, Lord Williamson of Horton, was the first in, then the noble Lords, Lord Grenfell, Lord Kerr and Lord Hannay. Most of your Lordships are probably too young to remember the cricket match that was played at Lord’s every year—it is now rather embarrassing to recall it—called Gentlemen v Players. I have no doubt that I will be hearing from the noble Lord, Lord Lester, about how many discriminatory observations I have made by even referring to the title. It was an almost unbelievable class system. The gentlemen came down the central staircase at Lord’s from the Long Room on to the cricket pitch when they came out to bat. The players came out of a sort of tunnel in a remote ignominious part. To crown it all, on the order of play where the names were, gentlemen had their initials and occasionally an “hon” and players had no initials.
I am not pressing this too hard: I am simply saying that there are gentlemen, if you take my meaning, and there are players, and a lot of very expert people, so it is rather inhibiting.
I have now insulted the noble Baroness. I am sorry. I will keep going. We all greatly admire the noble Baroness and the courtesy that she shows to all speakers.
I will get on. This Lisbon treaty is a pretty tough area for amateurs to deal with. I should state the extent of my qualifications and then tell noble Lords about my disqualification. I was recently a member of this House’s European Select Committee serving under the noble Lord, Lord Grenfell, and I was on Sub-Committee E. I was one of those who considered the proposed constitutional treaty, and we spent a lot of time on that. But I was not a member of any committee that considered the current Bill. In Sub-Committee E we had a succession of extremely able Law Lords. I hope that it will not be a feature of the move across the road to the Supreme Court that we lose for ever that wisdom. If so, that is a lamentable consequence. I will not mention any names but they were extraordinarily good.
I add my congratulations to the noble Lord, Lord Grenfell, and his team on the job that they did in producing this report, which has flagged up a great many concerns and gives a tremendously good exposition on what is contained in the Lisbon treaty. I was also struck by the numerous occasions when the committee said, quite accurately and sensibly, that we would have to wait to see how it played out and that it was not possible to forecast how it would go.
I should mention as a matter of candour to this Committee that I wrote a piece once entitled “A Case Study in Judicial Activism”, which referred to the European Court of Justice. The House of Lords Select Committee at that time in 1995 was good enough to put some questions to me about it and then wrote a report. I interpose to say that I will hand my notes to the Hansard team. I have references for everything that I am saying but I will not waste time giving the references now.
The committee considering my evidence, with disciplined brevity, rejected my criticisms of the court's activities without wasting the reader's time by refuting the details of my argument, at paragraph 256. Anyway, I somehow survived that and two years later, I became a Member of this House and in due course was put on the committees that I mentioned. I have no intention of revisiting any of that ground and the controversy concerning the modus operandi of the European Court of Justice, but for practical purposes it is the interpreter of the treaty.
I am sorry that the Bishops’ Benches are empty tonight because I wanted to remind them of a tremendous expression by one of their predecessors, Bishop Benjamin Hoadly, an early 18th-century divine, who held four bishoprics, starting at Bangor and going on to Hereford, Salisbury and finally Winchester. Preaching to the King in 1717, he said:
“Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them”.
He might have been writing about the European Court of Justice as its word is absolute, or is it?
I would like to refer to the position in three member states—we had a little about this before, but I did not intervene as I did not want to get involved in that controversy or elongate it any further. However, I would like to deal with the position of Germany, Denmark, and, more recently, Poland, as it is instructive and relevant to what may conceivably happen in this country.
It is impossible to go into the long story of Germany’s position, so I will not attempt it. However, it is important to mention that its constitution was amended in 1992 to make better provision for its EU membership. Specifically, it amended Article 23(1) of the German constitution to permit the transfer of sovereign rights to the Union, but subject to certain basic principles of the constitution, including fundamental rights. That has always been the German constitutional court’s position—that it safeguards the fundamental rights guaranteed by its constitution.
A case that is generally cited, was mentioned earlier, and is relevant here is the Brunner decision of the federal constitutional court in Germany, decided in October 1993. On a question of trespassing outside the jurisdiction given to the court, the court said,
“if European institutions or agencies were to treat or develop the Union Treaty in a way that was no longer covered by the Treaty in the form that is the basis for the Act of Accession, the resultant legislative instruments would not be legally binding within the sphere of German sovereignty. The German state organs would be prevented for constitutional reasons from applying them in Germany. Accordingly the Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them”.
That is an interesting statement on a jurisdiction. The court will watch to see whether the activities of the ECJ, or indeed of any other institution within the Community, go beyond the remit of the treaties, because that is the basis on which it acceded. I believe that is the current position in German law.
In Denmark, there was a case of Carlsen against the then Prime Minister, Mr Rasmussen, which was decided in 1999 by its supreme court. It, too, has a written constitution, section 20 of which provides that powers may be delegated to an authority,
“to an extent specified by statute”.
In the context of the Maastricht treaty, the claimants argued that the powers delegated to the Community under the treaty on European Union were too ill defined to satisfy the statute’s—the local constitution’s—requirements. They made two points, the first of which was that Article 308—which we all remember—
“of the EC Treaty gave the Council an open-ended power to legislate”.
Secondly, it said,
“that the ECJ indulged in what the claimants called ‘law-making activities’”.
On the criticism of the court, the Danish supreme court said:
“The fact that the ECJ in its interpretation of the Treaty also attaches importance to factors of interpretation other than the wording of the provisions, including the objectives of the Treaty, is not a violation of the assumptions on which the Act of Accession was based, nor is it in itself incompatible with the demand for specification in Section 20(1) of the Constitution. The same applies to the law-making activities of the ECJ within the scope of the Treaty”.
“within the scope of the Treaty”,
are exactly the German point. So long as they are giving a judgment within the four corners of the treaty, we recognise that and that is it.
On the wider question of what the position would be if it were later to be alleged in Denmark that an EC institution had exceeded the powers conferred on it by the treaties, the Danish supreme court said that, first, there would have to be a reference to the ECJ to rule on whether it was compatible or not with the constitution. Then it said:
“Danish courts of law can generally base their decision on decisions by the Court of Justice on such questions being within the limits of the surrender of sovereignty”.
However, the courts of law in Denmark cannot be deprived of their right to try questions of whether an EC act of law exceeds the limits or the surrender of sovereignty made by the Act of Accession. The court continued:
“Therefore Danish courts must rule that an E.C. act is inapplicable in Denmark if the extraordinary situation should arise that with the required certainty it can be established that an E.C. act which has been upheld by the European Court of Justice is based on an application of the Treaty which lies beyond the surrender of sovereignty according to the Act of Accession. Similar interpretations apply with regard to Community law rules and legal principles which are based on the practice of the European Court of Justice”.
The noble Lord was kind enough to refer to me at one point in his speech. I was once criticised by the noble Lord, Lord Campbell of Alloway, for making a serious point after the dinner hour, which he considered to be an abuse of this House. My difficulty is that having had the previous debate before dinner, I am bound to say that I do not understand—it must be my fault—the relevance of most of what is now being said to this amendment, rather than to the previous amendment. I would be grateful to know how this bears on this amendment.
If the noble Lord is patient enough to listen, he will see when we come to consider some of the provisions in the treaty of Lisbon, which may give rise to difficult problems of determining jurisdiction. I have in mind in particular the parts in the treaty where it is said that the European Court of Justice has jurisdiction on this frontier, but over here it has no jurisdiction. That arises in connection with foreign policy.
Perhaps I might intervene. In the last debate we discussed in great detail the Charter of Fundamental Rights, the issues of the European Court of Justice and its jurisdiction. We were fortunate enough to hear from the noble and learned Lord, Lord Slynn, a former European Court of Justice judge. While I do not wish to prevent the noble Lord from continuing in his current vein, it would have been incredibly valuable to have had this speech on the previous amendment. In my role as Leader of the House, I am aware that it is important to try to bring together our debates so that we get the maximum benefit. I shall not respond to a great deal of what the noble Lord is saying because I already have on the previous group. It might be of greater benefit in this debate if we were to focus on the particular aspect of the amendment, which is the role of Parliament and the issue of sovereignty, rather than debating issues that we have debated before. I say that with the greatest respect to the noble Lord, Lord Neill of Bladen, but we have already covered a huge amount of this ground.
It is a difficult judgment as to whether one should intervene in someone else’s amendment on which a lot of argument was going on or whether one should keep one’s powder and shot for an amendment for which I have actually put my name to. I naturally thought should I get up and interrupt and in the end I decided not to. I may have got that wrong. Essentially I think it is important we should not be too insular in these matters and that we should be aware of how other countries deal with these questions and in particular their stress on the need for the court to remain strictly within its jurisdiction.
In view of the lateness of the hour and what the noble Lord has said, I suppose I should spare you what the position is in Poland. Essentially the Poles have said that the national law is supreme, that there is a limitation on the powers of the EU—exactly the same point as the Germans—and that they reserve the right to consider the clash that might arise if some provision in the constitution was in conflict with Community law or a Community decision. They look at the possibilities that might be persuading the EU to alter their ruling, amending their own constitution or leaving the EU. None of this is challenging the basic position, which we were discussing before dinner, of the sovereignty of the EU court in so far as it decides things within its remit.
If we look at the position in English law, the general conventional wisdom is that the 1972 Act could be repealed by a straightforward Act saying that that was the will of Parliament. It is a little less clear what the position would be in relation to some particular doctrine or part of European law. Could we single that out and do so in clear language that was not to form part of English law? Lord Denning looked at that in the passage cited by Lord Waddington, in which he discussed what would happen if the time comes when Parliament passes an Act repudiating the treaty or any provision in it. He went on:
“I should have thought it would be the duty of Parliament to give effect to it.”
Lord Justice Laws in the Thorburn case, which was also mentioned by the noble Lord, Lord Waddington, said that,
“In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the 1972 Act were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case”.
He does not say what the answer would be if that situation did arise and he is not looking at the issue which I flagged up for your Lordships; that is, what happens if the EU measure in question is outside the four corners of the treaty or that the ECJ gives a judgment in an area which is not committed to?
We have had a lot of discussion about the Lisbon treaty. I have referred to the foreign policy borderline—details are in paragraph 4.176 of the committee’s impact report. Other problems are referred to in part 7 in paragraph 7.50, where there is a reference to Article 39 and the fact that the ECJ has no jurisdiction whatever in that area. I am putting into your Lordships’ minds the thought that we could get situations where it was unclear and there could be a debate whether a law, regulation or directive made by one of the organs of the EU, or whether a judgment of the ECJ, was within the limits of its jurisdiction. In that case, I think that it would be open to challenge in this Parliament and an Act could be passed expressly disclaiming part of the new instrument or the decision by the court. The nuclear option, of course, is to give notice, as has been suggested, under the provisions in the Act.
I support the amendment on the basis that it would be important to the public to know that the Lisbon treaty had been incorporated; otherwise, they will know nothing. The earlier debate this evening has shown the level of knowledge about EU law. Almost nothing is known by the general public about what is being done in their name, but there would be some satisfaction in having a clause which said that Parliament retained its full sovereignty to repeal the Act.
I want to return to remarks made by the noble Lord, Lord Waddington, in moving the amendment. He said that one party would pledge to renegotiate the Lisbon treaty if it was ratified. Am I correct in thinking that he was implying that it would be the Conservative Party? If so, perhaps I may address a question to the Conservative Front Bench and ask the noble Lords, Lord Howell or Lord Hunt, whether they agree that it is Conservative policy to renegotiate the Lisbon treaty. I think that the Committee would be interested to know whether that is the case.
I also wanted to go back briefly to what I believe is the substance of the amendment.
Is the noble Baroness asking me a question? If she is, I can answer it briefly. This debate will go on for ever if we open up the question of who might be elected and what they might do. I am simply saying that if, having been elected, a Government felt that they had a mandate to renegotiate, it would be very important to have an amendment such as this one on the statute book to make a reality of that renegotiation. That is all I am saying.
That still leaves me with the question of what is meant by having a mandate to renegotiate, and I should be interested in having an answer to that. I wanted to go back to what I believe is the substance of the amendment—that is, the supremacy of Parliament. It seems to me that, after getting on for three hours of debate on these issues, it is absolutely clear. Indeed, my noble friend Lord Lester of Herne Hill suggested that a first-year law student would know the answer—that the UK Parliament is indeed supreme. It can repeal the European Communities Act. As the noble Lord, Lord Hannay, pointed out, there is now a specific provision in the treaty on withdrawal. Therefore, it is utterly clear that the UK Parliament is supreme. It can decide to repeal the European Communities Act, but that would mean that we would no longer be in the EU. There is no third way.
The noble Baroness completely misses the point. The point is whether the European Communities Act could be disapplied in a particular case. That is what we are arguing about. It may be right or it may be wrong, but that is the point that we are arguing about. If in a statute we said in clear words that we wanted to do a particular thing, notwithstanding the European Communities Act, would that be good law? That is what we are talking about, but the noble Baroness is labouring on about an entirely different point.
I was about to go on to say that there is no third way. You are either in the European Union or you are not. If you are in the European Union, as the noble Baroness, Lady Ashton, said earlier, you have to apply the rules of the club; otherwise, as the noble and learned Lord, Lord Slynn, said earlier, there will be chaos and anarchy. This is a club in which there is the rule of law. Of course, we can defy the European Court of Justice but that would be incompatible with membership. Ultimately, we would be found to be in infringement of the EU treaties, and either by our courts or the ECJ incompatible legislation would be struck down. Therefore, while we are in the European Union we have to respect the primacy of EU law. The noble Lord, Lord Waddington, said that he was not advocating leaving the EU but—I am sorry but I have to repeat this—there is no third option. You are in and respect the rules—and ultimately can be found in breach either by our courts or the Luxembourg court—or you exercise the absolute right of Parliament, which is supreme, to leave the EU by repealing the European Communities Act and then we are no longer subject to the rules of the EU. After several hours of debate, the attempt to try and find some other option simply is not there. It is clutching at straws. It does not exist.
Could I just clear up one point? Again, I think it is important to be clear about it. Ever since the nineteenth century and Professor Dicey, it has been absolutely clear that under the English doctrine of parliamentary sovereignty, Parliament cannot bind its successors, in the sense—as Dicey pointed out—that even the Act of Union with Scotland could be trumped by a subsequent Dentist’s Act if that Act were to contain something that was clearly inconsistent.
Therefore, it is clear that under the English doctrine of parliamentary sovereignty, as stated by the courts—because the whole thing depends upon the common law recognition of parliamentary sovereignty by the courts—if a Westminster Parliament were to decide to pass legislation overriding the 1972 Act, it could do so, in so far as English domestic constitutional law was concerned. However, it could not do so in a way that would be legally valid. If we are members of the European Union, to pass legislation that was incompatible with the supreme law of the European Union would mean English courts would be compelled to hold the subsequent statute inconsistent with Community law and to disapply it. This is because English courts are under an obligation in the 1972 Act—and under a directly binding European law—to read and give effect to every British statute in a way that is compatible with binding Community law. With this problem, there is a difference when it is looked at as an isolated English constitutional problem and when it is looked at in terms of our membership of the EU. So long as we are within the European Union, there is no possibility whatever of a subsequent statute breaching Community law, being struck down or disapplied by our own courts and, ultimately, by the Court of Justice. That is the fundamental principle on which our membership of the European Community is based. It is for that reason that amendments of this kind, were they to be carried, would be necessarily held to be invalid.
Lord Justice Laws, a fine judge, floated in one of his judgments in the Court of Appeal—to take Dicey’s example—the supposition that Parliament were to be dotty enough, or the European institutions were dotty enough, to enact legislation requiring that all red-headed people should be boiled alive at birth. The question of parliamentary sovereignty and European Community law, in that kind of extreme hypothetical flat-earth case, could then arise. John Laws was indicating that, in that extreme case, there might be some possibility of litigation on that subject. Frankly, it is not really sensible to spend time on examples of that kind, floated by a distinguished Court of Appeal judge in a hypothetical way.
That is another legal gem to add to our wisdom this evening. I am very grateful to all those who have spoken. I say to the noble Baroness that it is inevitable—I know that your Lordships want to move on as quickly as possible—that there is some overlap between the last debate on the scope, jurisdiction and power of the European Court of Justice—which more or less put down firmly to a subordinate position the supremacy of Parliament in relation to laws already passed—and the question of the supremacy of Parliament now and to what extent it is affected by any future areas of expansion in the scope of the jurisdiction of the European Court of Justice. That is a perfectly legitimate sequential pattern to follow between the two debates and I think that the noble Lord, Lord Neill of Bladen, was right to argue as he did.
I found the last debate and this debate enormously stimulating. Listening to the views of our great legal luminaries and the learned Justice was like dipping into a cool, refreshing stream. They established beyond peradventure that, although my noble friend Lord Waddington may not be too happy about it—incidentally, it is a marvellous privilege to follow his rumbustious introduction—short of unlocking and trying to change the 1972 Act, the European Court of Justice is absolutely supreme in areas where it reigns. It is paramount. As Lord Justice Bingham said, it has a panoramic view and, as the noble Lord, Lord Lester, said, it is a supreme constitutional court. There is no doubt about that. Although I know that some of my noble and honourable friends and many people in this country would like it not to be so, it is so. The fact of the matter is that, in the areas where the European Court of Justice prevails and reigns—where its writ runs—it is supreme and parliamentary sovereignty has been subordinated to it.
Also relevant to this debate is the argument that we had earlier about whether that writ can be extended and whether it applies to matters where there appears to be a constitutional conflict between the Court of Justice and what we believe to be our own constitutional rights and values. We look to other countries, as the noble Lord, Lord Neill, rightly did, and see that they have constitutional safeguards in their courts and so on, whereas we have our own safeguards, which are of a different kind. Sometimes we wonder whether, at the parliamentary level, they could be reinforced. Perhaps in the future they can be. However, it is clearly established that the ECJ is supreme where its writ runs.
A perfectly legitimate question remains hanging in the air. Although my noble friend Lord Waddington may not want to be at the centre of the debate, the question is this: if we agree to this Lisbon treaty Bill, to what extent are we extending the areas in which the writ runs and the ECJ’s law is supreme? That is a legitimate area of debate. We have established that the Court of Justice has supreme authority over a large area, but to what extent do we want to extend that? Extend it the Bill does and extend it the treaty does. No one denies the fact that the ECJ acquires, by the collapse of the Third Pillar and the movement of judicial and home affairs and even some aspects of foreign policy into the Union proper, new areas in which to reign. We have an absolutely legitimate query about the extent to which its writ should be extended.
In an earlier debate, I read out 11 areas where CFSP is affected by veto changes. I will supply those to the noble Lord, but I will not go through them again now, as I know that there is tremendous pressure on time. Perhaps not all these areas will be directly affected, but the influence will certainly be there. The question also arises whether an individual case brought to the European Court of Justice arising from CFSP provisions is justiciable. The Government tried under the convention to have that clarified, but failed to do so. We have discussed that in great detail. I greatly respect the noble Lord, but we have a time constraint and I must push on.
The point of all this is that, if the ECJ is the supreme court—and, indeed, the supreme constitutional court—that knocks a hole into all the arguments about the charter and the red lines. None of those things is invulnerable to the supremacy of the European Court of Justice, as been made so beautifully clear by the distinguished legal luminaries in the Committee tonight.
The noble Baroness said that the member states make laws. It is the Council that makes the laws—sometimes unanimously, sometimes without the veto. We are left with the fact that the principle of ECJ supremacy is there; the principle of non-supremacy of the Parliament of this nation is there, but the question is, how far does the ECJ’s writ extend? How far does the principle extend and how far do we want it to extend? Now that the proposition of the Bill is that Pillar 3 be collapsed into the Union, the extension—the purview—of the ECJ would be extended further and the scope would be extended further. Is that what we want? I think not.
When we look into the future people will say that we need to think very hard indeed—I cannot go all the way with my noble friend. Constitutional safeguards similar to those in other countries are needed to ensure that in the future we do not find ourselves dragged further and further into a pattern of law and supremacy for which nobody in this country voted; many people do not want it and it is not healthy for the future of this nation or for Europe.
Let me begin by reiterating what I said to the noble Lord, Lord Neill of Bladen, for whom I have the highest respect. I hope he did not take offence at what I said. With such an interesting debate led by the noble Lord, Lord Owen, on the role of the German constitutional court, which I found so fascinating, I would have loved it to have ranged further and taken in other countries such as Denmark and Poland to which the noble Lord referred. I believe that I referred to France. It was in that spirit that I made my point. It is often frustrating when you wish to be brief from the Front Bench if you can see the opportunity to reiterate much of what you have said before for the benefit of noble Lords who had not participated. I apologise if I caused any offence—it was not meant.
In a way this is a simple proposition which relies on the position that noble Lords take on Europe and the current treaty. Those noble Lords who believe we should not be in Europe at all—and their view is perfectly formed—will take great exception to the suggestion that some court outside the UK should have jurisdiction. Those who wish us to have a kind of halfway house in our relationship with Europe will equally wish to put in caveats to make sure that if there is a bit of law that they do not quite fancy on day two, they can prevent the UK being subject to it.
I go back to what I have said during all our deliberations. When we signed up to this proposition, the European Court of Justice already existed and the primacy of European Union law was a well established principle. Noble Lords may argue that we should not have done it, that we should not do it now and that we should get out of it, which is a completely reasonable position. But that is where we are and I will not hide behind dancing on the head of a pin as to what is what.
The Council of Ministers is made up of the member states. It is no good saying that the Council and not the member states makes the law, because the Council is made up of the member states. I have sat on the Council of Justice Ministers. I was there with a badge which said, “UK Government”. I gave my contributions, voted and made my decisions on that basis. I represented this Government, this country and its best interests throughout, as did all of the other colleagues around the table, representing the 27 member states.
I am under no illusion about what I was doing. I was a representative of a member state moving to make better law. I believed that what I was doing was in the best interests of the citizens of this country. I have described civil justice as an important element. If people are to live, work, study, travel, buy or sell in the European Union they need a civil law backdrop that makes sure they are well protected in those transactions, whatever they be. That is fundamental.
In the determination of that civil law, where we have made the law, the European Union Court of Justice interprets for all of us to make sure that each member state does what it says on the tin. Each of them enacts the law as it has been written. I am also under no illusion that that comes from the supremacy of this Parliament in signing up to the 1972 Act and all that went with it.
At the end of the day, this Parliament will decide whether we repeal that Act or stay within the European Union. That is the fundamental point of this amendment and for me a very simple point. While we are part of the European Union, the European Court of Justice has a role and responsibility. The noble Lords, Lord Howell and Lord Hunt of Wirral, have made it perfectly clear that they do not like the Third Pillar collapsing into the First Pillar. They do not seem to recognise the importance and relevance of the opt-ins that have been proposed. We will debate this further and I am sure that the noble Lord, Lord Howell, will be able to put forward his case.
In the context of the negotiations that have gone on around the Lisbon treaty, the UK is in a strong and good position—we want to be part of the European Union. In justice and home affairs, collaboration with our European partners is central to many of the things that we want to achieve—on serious and organised crime, terrorism, asylum and all sorts of issues and matters to do with collaboration and co-operation. We must look at the rub between what we are doing in Europe and in a domestic scenario and ensure that, when we sign up to it and opt in, it is in our best interests. Noble Lords will know that on some occasions on civil justice I opted in and on some occasions I did not. All those decisions were made on the basis of what I believed and my colleagues, more importantly, believed, were in the best interests of the UK. That will continue.
Part of what is factored in will be a recognition that the European Court of Justice will have a say in determining what the rules are and how they are applied. That is one of many factors that the UK Government will take into account, but it is just one. It is an important one, however, and part and parcel of what this treaty does. Noble Lords may decide that they do not like this and if they were on this side of the House they would renegotiate. Well, this has been a long negotiation, which started a great many years ago; it is time to move on from institutional reform and get on with the business of what being part of the European Union is for and tackle some of the long-term and difficult objectives that we all have.
In the context of the amendments, the role of Parliament is clear. It has the capacity to repeal the 1972 Act and to make that determination. That in my view is the answer to the amendment and on that basis, the noble Lord should withdraw it.
This has been an interesting debate—I do not think that anybody can deny that—and I am very grateful to everybody who has taken part in it. Thank you all very much indeed. I beg leave to withdraw the amendment.
[Amendment No. 124 as an amendedment to Amendment No. 123, not moved)]
Amendment, by leave, withdrawn.
[Amendment No. 123 not moved.]
128: After Clause 2, insert the following new Clause—
“Deployment of European Gendarmerie Force: parliamentary approval
Notwithstanding any provision of the European Communities Act 1972 (c. 68), nothing in this Act or the Treaty of Lisbon shall be taken as requiring the United Kingdom Government to permit the deployment of the European Gendarmerie Force in the United Kingdom without the consent of the United Kingdom Parliament.”
The noble Lord said: We come to three separate amendments, which look further into the future that may arise from the treaty and our membership of the European Union. Amendment No. 128 looks at the EU gendarmerie force. In Amendment No. 129 we look at xenophobia and in Amendment No. 130 we look at the question of the EU having powers over direct taxation.
I fear that some of your Lordships may not be fully au fait with the EU gendarmerie force. What is it? By way of answering that question, I tabled a Written Question on 19 February 2007, in which I asked Her Majesty's Government:
“What is the proposed strength of the European Gendarmerie Force; what is its intended purpose; how is it being financed; and how much will it cost”?
The Minister replied:
“The European Gendarmerie Force … is an initiative of five … member states (France, Italy, the Netherlands, Portugal and Spain). The UK is not a member of the EGF and therefore does not have detailed information about the force. I understand that the purpose of the EGF is to make available rapidly deployable paramilitary police units able to perform a variety of policing roles, primarily in support of EU crisis management operations. It has a permanent headquarters … of 30 staff based at the Centre of Excellence for Stability Police Units, in Vicenza, Italy. The HQ consists of a multinational core that can be reinforced as needed by agreement of the contributing states”.—[Official Report, 19/2/07; col. WA 179.]
This is, then, a body set up to deal with EU crisis management operations, and I submit that we must think: what are those likely to be? Friends of mine—in the UK Independence Party and others, in Brussels—tried to find out. They went to Vicenza, where I have to tell your Lordships that they were not all that well received.
Perhaps that was not surprising, so, on 4 February this year I tabled another Question, because a rumour was going around that this wonderful new European military police force was going to be deployed in 2012 in this country, at the Olympic and Paralympic Games.
Well, one point about the European Union is that whenever we hear of a plan that it appears to be hatching, one always thinks, “That’s so absurd: it couldn’t possibly happen. It wouldn’t dare do that, would it?”. We thought that about corpus juris, social policy and many things, yet history has shown that it always dares to do it.
If I may continue, then, without ridicule from the Liberal Democrat Benches, I will reveal to the Committee that on 4 February I asked Her Majesty’s Government:
“Whether the European … Gendarmerie Force will assist with the 2012 Olympic Games in the United Kingdom; and what role they foresee for this force in the United Kingdom”.
I received an Answer from the Government, in the shape of the noble Lord, Lord West of Spithead, which read:
“The Government have not received any proposals on the use of non-UK police forces in support of security of the 2012 Olympic and Paralympic Games. We will consider any such proposals carefully”.
In government-speak that, as we all know, means, “We think that it may happen”. His reply continued:
“Policing in the UK is carried out with the consent and co-operation of the community”—
but which community? Then:
“We would not want to interfere with these long-established policing traditions of which we are justly proud”.—[Official Report, 4/2/08; col. WA 157.]
It must be said that the EGF, if I may refer to it as such to spare the Committee my deplorable French, was not validated until 8 October 2007 under the treaty of Velsen—the same day that the Lisbon treaty was signed, as it turned out. In that treaty, the EGF is allowed to recruit from candidate countries, and I understand that Turkey is particularly interested in joining in.
Can this thing be used here, and are the Government thinking of allowing the EGF in? Of course, it is quite a clever arrangement; I have given the Committee the countries that make it up, and in that sense it resembles the Farnborough agreement to which I referred on defence matters. It is just a few countries, but it can easily be turned into an EU initiative.
The noble Lord is being unusually obtuse. The Farnborough agreement is made up of five or six EU nations that have clubbed together to pool their defence procurement, but can be turned into an EU initiative. In fact, it now concerns most of EU procurement, as the noble Lord himself said the other evening. This initiative is also an agreement between a few EU countries but, as I shall show, it can be turned into an EU initiative at the flick of a switch. My submission is that it will be. Indeed, the EGF is training—
I would not mind if decent Turkish citizens became British bobbies on the beat here. I would be somewhat more worried if Turkish citizens of perhaps a less salubrious kind were to be employed by the organisation I am describing, about which I wish to ask the Government some questions.
The hour is late, and I hesitate to suggest that the noble Lord is wasting police time, but that is what he is doing. This body is designed, as he read out, for crisis management outside the European Union. If he had any familiarity with the mounting of peacekeeping operations and conflict prevention, he would know that there is an increasing requirement in such operations for gendarmerie-type police. They exist in some member states, but do not exist in this country and a number of others. Therefore the countries that have them are prepared to get together, pool them and put them at the disposal of the United Nations or the European Union for peacekeeping operations, where they are extremely valuable and important. They are not for deployment within the European Union to other member states. We can go on with these fantasies, I suppose, all night if necessary, but it might be better to consign them to our pillows where such fantasies can become nightmares. Really and truly, this is not a serious subject.
The noble Lord is very generous, but can he tell me where in the arrangements of the EGF it is not allowed to operate within the EU? I give the Government’s Answer again—that it will be,
“primarily in support of EU crisis management operations”.—[Official Report, 19/2/07; col. WA 179.]
Can the noble Lord tell me where in any EU document the words “crisis management” are ever used for activities within the EU? If we look at the Petersberg tasks and the development of the ESDP, the words “crisis management” are always used in external activities rather than internal ones.
That is a “when did you stop beating your wife?” argument. Can we please not have that sort of argument? The noble Lord, Lord Roper, has explained, and I have tried to explain, politely, the purpose of this instrument. It is a perfectly legitimate: it is for dealing with the activities that the European Union undertakes in the form of conflict prevention and peacekeeping operations outside the European Union. There are no provisions in any of the treaties for conducting such operations within the European Union. It is considered unthinkable that they should ever arise. You cannot turn negatives into positives in a vacuum. It really would be wiser if the noble Lord would, at this very late hour, ask the Minister to reply briefly and then withdraw his amendment because we are wasting time.
I have no intention of doing that because Europhile noble Lords, as usual, are saying that this EU initiative could not turn into what one fears it could. I do not accept that and I quote one obvious instance. The control of civil contingencies in the European Union passed to Brussels last December under Article 308 of the present treaty of Nice. When I withdrew my amendment earlier today, I hope I indicated—perhaps I did not—that I would return to it on this amendment. Whether Europhile noble Lords like it or not, the control of civil contingencies, which is clearly in the European Union—
It means crisis management.
Not at all, absolutely not. If the noble Lord cares to read the House of Commons report on the use of Article 308, he will find that it applies to foreign crisis management, but is also applicable in this country and the European Union. This clause, Article 308, which was in the 1957 Act, and which allowed the Common Market, as it then was, to make minor adjustments to tariffs and so on, said that it could only be used in the course of the operation of the Common Market. This clause, with the support of the Luxembourg court, was used, among many other initiatives, to pass the control of civil contingencies to Brussels. Those civil contingencies clearly include civil contingencies in this country. There is no exception to them.
I have heard very clearly what the noble Lord has said. Civil contingencies are one thing. In any of that legislation, do the words “crisis management” appear? My feeling is that they do not. “Crisis management” appears in the original Petersberg tasks, which were in the Maastricht treaty, only in the context of the use of forces in crisis management, and in subsequent CFSP matters. The noble Lord will have to strain very hard to find the words “crisis management” ever used for activities within the European Union.
The noble Lord does not have to strain very hard because, if Europhile noble Lords will permit, I am about to ask Her Majesty’s Government what, if any, is the connection between crisis management and civil contingencies. I ask the Government: what is going on with this EU gendarmerie force? Can the Minister assure us that it will never be used to put down civil contingencies or for crisis management—or however the Petersberg tasks wish to describe it—in this country? Can the Minister give an unequivocal guarantee that the EU gendarmerie force will not be deployed in this country without parliamentary consent? Can he assure us that it will not be used, as is widely feared in Brussels and elsewhere, for instance, in the 2012 Olympic Games?
It is simply not feared widely in Brussels. I have read a great many documents on the EU gendarmerie force. Much of this is in the public domain. It started with civilian police operations in the western Balkans, to which the British made some contributions, usually from the Royal Ulster Constabulary. This has been used. There have been some operations in which civil police have operated in other European countries. British police, the noble Lord has no doubt not appreciated, walked in uniform on German soil during the last World Cup. It may well be that, during the British Olympics, police from other countries do the same here as a useful means of dealing with international crowds. That is entirely different from the delicate conspiracy theory of foreign takeover of Britain that the noble Lord is attempting to build.
I support my noble friend Lord Pearson. I do not think that the strictures from the noble Lord, Lord Hannay, are correct. This is an EU force, which, as my noble friend said, is training in Vicenza. It is not a civil, nice, friendly bobby police force, but riot police. I know that I am not allowed to produce photographs or anything else as hard evidence in your Lordships' House, but I can describe a photograph of helmeted, shielded, gas-masked, armed police training in Vicenza, with EU flashes on their shoulders. They are obviously acting in an EU capacity. Why, therefore, should they not at some point be deployed within the European Union?
On the Olympic Games, recently, in London, we had unfortunate demonstrations when some Chinese goons in rather unfortunate track suits were guarding the flame. Under what authority were they deployed? No one seems to have answered that question. I think that they even manhandled the noble Lord, Lord Coe, who is in charge of our Olympics. If the Government are happy to have Chinese goons guarding the Olympic flame this year, will they have the EGF in any role in the future, whether at the Olympic Games or in any other capacity? Whether it might be for friendly matters at football matches, as the noble Lord, Lord Wallace, said, I do not know, but these are not friendly bobbies with whistles around their necks. They are an armed and gas-masked European Gendarmerie Force.
The noble Lord is right and after this debate I will give him a photograph of the EGF, if he would like that, and he will see that it is booted. I support my noble friend’s amendment and I look forward to hearing from the Government Front Bench.
Amendment No. 128 would insert a new clause requiring UK parliamentary approval prior to the deployment of the European Gendarmerie Force in the United Kingdom. I was asked to distinguish between civil contingencies and crisis management by way of examples. Civil contingencies might be flooding or some natural disaster. Crisis management could involve the collapse of a state, such as Kosovo some years ago. The difference could hardly be greater.
The latest recruit to the noble Lord’s party, the honourable Mr Spink, asked the Secretary of State for Foreign and Commonwealth Affairs a Question on whether he,
“will make representations to those governments contributing to the European Gendarmerie Force that it should not be deployed on the territory of another member state of the European Union”.
My honourable friend said:
“The European Gendarmerie Force … is not an EU proposal or agency. The primary purpose of the EGF is to assist in crisis management operations in post-conflict situations and it is therefore extremely unlikely to deploy in an EU country. Deployment of the force is a matter between the governments contributing to the EGF and the requesting state in need of assistance”.—[Official Report, Commons, 7/1/08; col. 93W.]
I was asked whether Article 352 would be used to establish a European Gendarmerie Force. Perhaps I may interrupt myself to say that Members of the Committee talked about an EU gendarmerie force, which it is not. It is the European Gendarmerie Force and has nothing to do with the European Union.
I have no idea, but it is nothing to do with the European Union.
The question posed was whether Article 352 could be used to establish the European Gendarmerie Force and could the force operate in the United Kingdom. Article 308, to which the noble Lord referred, allows the Union to take action in pursuit of a Union objective where there is no specific legal base but any action would have to be agreed by unanimity—that is, we would have a veto. But that position would not arise because the European Gendarmerie Force is nothing to do with the European Union. There is no suggestion that it should be brought within the framework of the European Union using Article 352 or otherwise. In any event, it can operate only with the consent of the state concerned. So if the fear is that the EGF could operate in the UK, it could only do so if we asked it to.
The United Kingdom does not participate in the European Gendarmerie Force. It is an initiative of France, Italy, the Netherlands, Portugal and Spain. Its purpose is to assist the international community in dealing with states in crisis situations. The EGF can only be deployed in agreement with the state in question. In short, the EGF has nothing to do with the EU, nothing to do with the Lisbon treaty and nothing to do with this Bill.
Is there, therefore, any reason why the noble Lord cannot accept the amendment? If he cannot accept the amendment, is he giving an unequivocal guarantee—it is reasonable to ask this question before I decide what to do with the amendment—on behalf of the Government that this force will not be used in this country without the consent of Parliament?
I do not know whether we are going home. I am ready to move on to “Xenophobia”, which is even more interesting. But were we not to move on to “Xenophobia”, I think Hansard will bear me out that the Government have said that my fears about the EU Gendarmerie Force are completely unfounded. I very much hope that they have not given a hostage to fortune. With that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I would like to go on to “Xenophobia” but as tomorrow is Thursday the House needs to rise by 11 pm. I regret that it will not be possible to move on this evening unless the noble Lord can give an assurance that he will speak briefly, that my noble friend will be able to respond and that we will finish by 11 pm.
I would like to give that assurance but, as I have discovered in these proceedings, if one puts the smallest match to the dry hillside of Europhiliac fury, I cannot guarantee that even if I move the amendment very briefly—it will take me about four minutes—we will not be here until 1 o’clock before we finish with “Xenophobia”. In those circumstances it may well be time to draw stumps.