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I have never been regarded as one of the “usual suspects”, to quote again the noble Lord, Lord Stoddart. On the contrary, I have usually been regarded as a warm supporter of membership of the European Union, and have been so all along. There must be some flexibility, however. The “magic words”, as they have been described in another place, in my noble friend’s amendment—
would bind the courts. They would have to have regard to a later Act passed by Parliament. My noble friend’s amendment is a careful, modestly worded proposal for something we could certainly accept.
Lord Henley: 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.
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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
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Lord Desai: Will the noble Lord explain why, in the 16 years after 1972, when his party was in power, at no stage was such an amendment introduced—not in the 1994 Act or anywhere else? Was there a great obstacle, so that only when the Conservative Party is in opposition does it suddenly become capable of amending the rights of Parliament?
Lord Henley: The noble Lord is quite unfair. The deregulation Act that we introduced in, I think, 1994, was a very different animal from this Bill. My noble friend Lord Waddington felt that in the light of this Act it was worth getting the provision down on paper and putting it in the Bill. That is why he brought forward this amendment, and why we are prepared to support it.
Baroness Carnegy of Lour: In reply to the noble Lord, Lord Desai, it is the job of oppositions to do just this. It would be difficult for a Minister to make that speech, nevertheless it is true.
Before the Minister joins the Peers on his Benches and the Liberal Democrats in laughing at what my noble friend behind me said about farmers’ difficulties—because there is a habit of laughing whenever somebody who is violently against them speaks—I offer to take any noble Lord from those parties to farmers living near me who will tell exactly the same story about what regulation is doing to them. Most people in farming find it very difficult to make a living. The noble Lord behind me may be able to pay £2,800 and more because of the directive about water, but many farmers cannot. I hope that noble Lords are not going to laugh at what is being said about this amendment.
Lord Bassam of Brighton: In response to the noble Baroness, Lady Carnegy of Lour, I certainly was not laughing at the plight of farmers. I fully accept that many farmers are struggling to make ends meet and to conduct their businesses as we would all wish them to.
I have no doubt that, because of its deregulatory spirit, our legislation is designed to make easier the regulatory regime for farming businesses. We seek a regulatory regime that is in balance and that works in everyone's interests. I see no mirth in that.
The amendment is rather different. In pure drafting terms, I must tell the noble Lord, Lord Waddington, that its inclusion would add nothing to the Bill, as orders validly made under Clause 1 are already binding in any legal proceedings in the UK, by virtue of their being UK legislation.
However, the intention behind the amendment, however carefully argued, seems to be to underline that the power in Clause 1 could be used to enact legislation that is inconsistent with Community obligations—hence the words,
Indeed, it would appear that the new clause is intended to provide for an express order-making power to override Community law.
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Despite what I have heard, I think that the new clause would pretty speedily lead to infraction proceedings, and would be likely to be found in breach of Community law by the European Court of Justice. That is not just my view; it is also that ofMr William Cash, who tabled a similar amendment on Report in the House of Commons. In promoting his amendment, he conceded that if orders were passed that were incompatible with Community law:
“Predictably, there would be ... infraction proceedings”.—[Official Report, Commons, 15/5/06; col.757.]
Furthermore, if the power provided by the new clause were used to make an order incompatible with Community law, the Minister responsible would be in breach of the Ministerial Code, section 1 of which requires a Minister to comply with the UK’s international obligations.
In domestic court proceedings, judges would be required to regard an order made under the power provided by the proposed new clause as binding, notwithstanding the European Communities Act, and thus notwithstanding the usual requirement under the Act for domestic judges to follow the case law of the European Court of Justice. However, that would not prevent the ECJ finding that the order breaches Community law.
It is perhaps worth noting that, were an order to be made under the proposed clause that was incompatible with Community law, it could be followed by proceedings seeking either a lump-sum fine or a daily penalty fine until the UK came into compliance with Community law.
Furthermore, when a member state is clearly flouting Community law and in so doing causing financial or other harm, the Commission may at short notice seek interim relief—an injunction—from the president of the European Court of Justice, as happened in the now much-cited Factortamecase.
Damages are also available where a member state infringes a Community rule of law conferring rights on an individual or company where the infringement is “sufficiently serious” and a causal link can be shown. It would be extremely difficult to avoid liability for such damages in appropriate cases.
I cannot see that the new clause takes us very far; nor do I think that it achieves part of what the noble Lord, Lord Waddington, sought in moving it, which was to prevent over-implementation—the gold-plating of which he and, for that matter, Ministers are wary. I think that I can make the case that the amendment is unnecessary to deal with gold-plating. Clause 1 can already be used to remove it—a point already made by the noble Lord, Lord Goodhart, in opposing the amendment.
On gold-plating, as I think I explained at Second Reading, and I am sure I have done since, we have also put in place the Davidson review, which is considering the over-implementation of EU legislation. We have called for evidence for that, and the review will report to the Government in the autumn. No doubt that will stimulate wide public debate, which is right and will be very helpful to us and the regulatory framework.
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The noble Lord, Lord Goodhart, made the points that I have made: that the power is already in the Bill, the legislation would be contrary to Community obligations and it would make the Bill and its order-making power highly controversial. In absolute terms, Parliament could revoke the 1972 Act if it wanted to because ultimately it is supreme. I see no need for the amendment. It would not achieve what the mover wants it to achieve—an end to gold-plating. Ultimately, Parliament is sovereign. If we were to adopt the amendment, it would run us into difficulties when working with our European partners and would be likely to lead to infraction proceedings, which could be equally damaging for our reputation in the European international community. For all those reasons, I must resist the amendment.
5.15 pm
Lord Waddington: Noble Lords will appreciate from what has been said that an amendment with identical terms was moved in the other place. I have to tell the noble Lord, Lord Goodhart, whom I greatly respect—I have certainly paid full attention to what he has said on these matters—that I recall that the Liberal Democrats in the other place seem to be rather impressed by the amendment; certainly some of them spoke in favour of it. I cannot say with certainty that they all voted for it, because I do not have Hansard in front of me, but I have the clearest recollection that the Liberal Democrat leading for his party spoke enthusiastically in favour of the proposed new clause in the other place. Whether that is a matter to which we should pay great attention and on which we should place great weight, I know not, but it is important to put the record straight.
The other thing that I should tell your Lordships is that a great deal of work went into drafting the amendment, because we are clearly dealing with sensitive constitutional issues. The matter was discussed at length with parliamentary counsel, and I think the Committee will take it from me that this is the wording which the Government would have been asked to accept as the correct wording of a new clause if they had wished to achieve the three aims to which I referred. If they had wished to make absolutely sure that the Bill could be used to get rid of gold-plating, this is the appropriate wording. If they had wished to make it plain in the measure that the 1972 Act can be disapplied, this is the correct wording to use—of that, Members of the Committee can be absolutely certain.
To return to what the noble Lord, Lord Goodhart, said, if the procedures available to this House were used with the intention of enacting law that made us fully compliant with our EU obligation, but having used those procedures, tailor-made for meeting our EU obligations, the Government believed that we had gone too far, I doubt very much whether, without this wording, it would be safe to use this measure to get rid of the gold-plating and to amend what we had originally done.
I do not know how certain the noble Lord, Lord Goodhart, is in his mind. I am not certain in my mind, and I would rather be sure. Common sense tells one to spell out clearly in this measure that it could be
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Lord Bassam of Brighton: I should like to clarify one point. I have listened carefully to the noble Lord, Lord Waddington. When talking about the wording of his amendment, he got close to suggesting that it was in some way given the Government’s blessing or approval. That is not the case. I know that there were discussions with the Public Bill Office, which probably sought advice from parliamentary counsel. That is rather different from saying that this is Government-approved wording to achieve the objective which the noble Lord is seeking to secure by virtue of this amendment. I want to make clear that this amendment does not have Government approval. Whether it works is another matter. I have described exactly what I understand to be the effect of the amendment. I have also advised the Committee that Clause 1 tackles gold-plating perfectly well.
Lord Waddington: I can assure the noble Lord that I never thought that the amendment had the Government’s approval. I am saying that this is the appropriate form of words to use if one wants to be absolutely sure that this Bill can be used to amend a provision which was originally introduced in purported compliance with an EU obligation, but was later thought to go too far. We must make sure that the Act can be used for that purpose. I therefore commend the new clause to the Committee, and I wish to take the opinion of the Committee.
5.22 pm
On Question, Whether the said amendment (No. 30) shall be agreed to?
Their Lordships divided: Contents, 107; Not-Contents, 192.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Ballyedmond, L.
Beaumont of Whitley, L.
Biffen, L.
Blackwell, L.
Blaker, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Chadlington, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Denham, L.
Dixon-Smith, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Flather, B.
Fookes, B.
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Glenarthur, L.
Goodlad, L.
Hamilton of Epsom, L.
Hanham, B.
Hanningfield, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Inglewood, L.
Jenkin of Roding, L.
Kalms, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Laing of Dunphail, L.
Laird, L.
Lane of Horsell, L.
Liverpool, E.
Lucas, L.
Luke, L.
MacGregor of Pulham Market, L.
Maginnis of Drumglass, L.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Moran, L.
Morris of Bolton, B.
Morrow, L.
Naseby, L.
Noakes, B.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Perry of Southwark, B.
Platt of Writtle, B.
Rawlings, B.
Renton, L.
Roberts of Conwy, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Slim, V.
Soulsby of Swaffham Prior, L.
Steinberg, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Tebbit, L.
Thatcher, B.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wakeham, L.
Weatherill, L.
Wilcox, B.
Willoughby de Broke, L.
Windlesham, L.
Acton, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Bledisloe, V.
Blood, B.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Chidgey, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Dahrendorf, L.
Darcy de Knayth, B.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Garden, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Golding, B.
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Gordon of Strathblane, L.
Gould of Brookwood, L.
Grantchester, L.
Greengross, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Joffe, L.
Jones, L.
Jones of Cheltenham, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Lea of Crondall, L.
Lee of Trafford, L.
Leitch, L.
Lester of Herne Hill, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
Lofthouse of Pontefract, L.
McCluskey, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Miller of Chilthorne Domer, B.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Newcastle, Bp.
Northover, B.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Redesdale, L.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Russell-Johnston, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sewel, L.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Teverson, L.
Thomas of Macclesfield, L.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tordoff, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walpole, L.
Warwick of Undercliffe, B.
Whitaker, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
Baroness Crawley: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
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