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[Amendment No. 109 not moved.]

[Amendment No. 110 had been withdrawn from the Marshalled List.]

Clause 2 agreed to.

[Amendments Nos. 111 to 114 not moved.]

Lord Blackwell moved Amendment No. 115:

The noble Lord said: This straightforward amendment seeks to establish that nothing in this Bill or the treaty of Lisbon changes the position requiring the UK courts to enforce judgments of the European Court of Justice in the specific areas of civil or criminal law, or police and judicial processes, that run counter to laws passed by the United Kingdom Parliament.

In our debate earlier this week on the provisions in the area of freedom, security and justice, I made the point that justice and policing is an area that belongs within a nation state. The electorate of a nation

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expect to be able to elect a Parliament and Government that have ultimate control over their criminal law and judicial processes. I fully accept—although I may not like it—that, where the UK agrees to opt in to a measure on freedom, security and justice and then passes a law to apply that measure here, we will be signing up to the jurisdiction of the European Court on any measure in that area.

Indeed, as we noted during the week, the European Court can take the UK Government to task if it believes that they have not implemented a measure effectively in the UK. The question that follows is: if there is a dispute, who decides which law applies in the UK? Can someone apply to the UK courts for a court interpretation of the will of the UK Parliament, or is the UK court system trumped by the European Court of Justice, which has a superior position in interpreting that will?

Moreover, if the UK Parliament responded to an ECJ judgment by passing a new law that made explicit what the provisions of that law were meant to be in the United Kingdom, would the UK court system uphold the will of this Parliament, or would it regard itself as having to uphold decisions by the European Court of Justice? It is important that we are clear on these issues at this point.

In the area of freedom, security and justice, where we may not have opted in, judgments will be made and precedents developed within the rest of the European Community and it is quite possible, following precedent, that those judgments may be taken as setting precedents. Then we have the situation that, even in an area where we have not opted in, our legal system may start to define UK law based on judgments elsewhere in the European community. Much of that is normal process, but if our UK courts are asked to interpret a law according to a law passed by the UK Parliament, can we be clear that the UK Parliament’s law will take precedence over the importation of precedents from the European legal system? Will judgments in the area of security, freedom and justice—where we have opted in—to do with cross-border disputes, as all measures under that area are supposed to be, nevertheless become precedents that become a determining factor in the UK legal system?

Then we come on to the European Charter of Fundamental Rights which, as we know, has the same effect in the UK as elsewhere, despite our protocol, and is binding in its consequences. The question arises of whether it can be used as an appeal mechanism to appeal against UK laws on the basis that a UK law passed by the UK Parliament offends, in the eyes of the European Court of Justice at least, against some of the measures in it. If so, will the European Court of Justice have the final say on the matter or will it be the UK courts?

I am not a lawyer, and I confess that many of these issues puzzle me. I have listened to many lawyers arguing them without coming to a clear resolution. My amendment attempts to put this matter beyond doubt by stating:

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in this area,

I live in hope that the noble Baroness the Leader of the House will respond to this by saying, “Yes, of course that’s true and therefore I am quite happy to accept this amendment and add it to the face of the Bill”. If she cannot accept it, it is incumbent on her and the Government to spell out that under this Act and treaty they are asking us to accept that the ECJ should have the power to override laws passed by the United Kingdom Parliament because, if she does not accept this amendment, that is what she is telling us. I beg to move.

[Amendment No. 116, as an amendment to Amendment No. 115, not moved.]

Lord Slynn of Hadley: I congratulate the noble Lord on making the issue that he raises as clear as it could possibly be. This amendment is as direct, clear and, I respectfully suggest, potentially destructive as any of the other amendments before your Lordships today. There is no way that a regional system of justice can avoid accepting the principle of uniformity. It is essential in the European Union that there should be a court that will give a final interpretation and a final determination on questions of European law. Those decisions must be applicable in every member state of the European Union. That principle of law has been applied for 50 years. It is a principle that, until this amendment, I had not heard challenged with quite such directness. The noble Lord is, of course, perfectly entitled to do so, and I respect his view, but it would mean that in future—leaving aside the areas that he says he would accept as being within the remit of the European court—there can be no area in which any decision of the European court can lay down a principle that must be followed by the national courts. If the principle in this amendment is to apply in the United Kingdom, it should also apply in the member states, and we should now have not six, not 15, not even 25, but 27 and perhaps more judgments and definitions given by the courts of all the countries. The chaos would be absolute. I respectfully submit that this amendment is not one that the Committee should contemplate for a moment accepting or giving effect to.

Lord Lester of Herne Hill: It would be presumptuous of me to speak at any length after the noble and learned Lord, Lord Slynn of Hadley, has spoken. I remember with great affection that it is half a century since, sitting on the bed of Queen Victoria at Trinity College, Cambridge, he attempted to teach me the history of the law of assumpsit. For the past 50 years, ever since being his pupil, I have sat at his feet. There is no greater living authority than the noble and learned Lord, Lord Slynn, when it comes to the relationship between European Union law and this country’s domestic law. I shall therefore be extremely brief and shall not repeat anything he said.

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Ever since 1972, when we joined the Common Market, it has been quite clear in the European Communities Act, which was crafted principally by the noble and learned Lord, Lord Howe of Aberavon, that Section 2 requires all three branches of government in this country, where European law reigns supreme, to give full effect to that law whether passing laws, interpreting laws or giving effect to those laws. It was clear at the time, it was made clear in a case I once argued before Lord Denning called McCarthy’s v Smith, it was later made absolutely clear in the Factortame case by the Law Lords and made clearer yet again in the case involving the Equal Opportunities Commission and the Secretary of State for Employment. In all those cases, a provision in an Act of Parliament was in conflict with the paramount law of the European Community. For example, in the Factortame case, as everyone knows, a provision in the Merchant Shipping Act discriminated on grounds of nationality in the area of fisheries. That case went to Luxembourg and came back again—it went several times—but it was made quite clear by Lord Bridge that the Merchant Shipping Act’s discriminatory provisions had to be displaced in favour of the binding European rule of equal treatment without nationality discrimination. To take quickly another example, in the EOC case, the Employment Protection (Consolidation) Act 1978 stated that people had to work so many hours a week in order to get employment benefits. That was in conflict with the European equality directive, which requires equality for women without discrimination, as it hit disproportionately at women who could not work full time, and the Law Lords again decided that the domestic provision had to be read and given effect so as to remove the sex discrimination against women. There is no doubt whatever about the relationship. The sovereign Parliament could decide to repeal the 1972 Act, but could do so only if we were to leave the European Union. Unless it did so, the position is as the noble and learned Lord, Lord Slynn, has stated, far more eloquently than I can. That is the first main point: parliamentary supremacy gives way, because we exercised parliamentary sovereignty in 1972, to the paramount law of the European Union, only where that paramount law reigns.

7 pm

As far as the Charter of Fundamental Rights is concerned, the report of the Select Committee of this House, to which I was privileged to contribute, made it clear beyond argument, article by article, that the charter posed no threat whatever to our internal legal system. No one has pointed to any provision where that could arise. It does not give rise to a problem.

Finally, I will speak briefly to Amendment No. 127 in the name of the noble Lord, Lord Owen. That will save my doing so again later. I will explain briefly why—with great respect—it is, for similar reasons, misconceived. Amendment No. 127 seeks to allow anyone living in the United Kingdom to apply to the High Court for a declaration on any question of interpretation of the Lisbon treaty, even though there is no need to determine the rights or liabilities of the applicant. On that first point, that is entirely a matter for our own courts at present. I have no doubt that, in

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a proper case, they would think it right to grant a declaration on matters of interpretation.

The second point is that a Minister or others can apply. That is otiose—unnecessary—because they could already do so under our well known principles of administrative law. The third point, which is the nub of the amendment, is the suggestion that an interpretation of the treaty, made on an application brought under this section, must be consistent with the interpretation given to the treaty by the UK Parliament at the time the Act was passed. That is unlawful under the law of the European Union because it would seek to make this Parliament master of the interpretation to be given of the treaty, rather than the European Court of Justice, which is the final court on questions of that kind. In other words, it would be another way of seeking to invoke parliamentary sovereignty in a way that was unlawful under European law.

Sub-sections (4), (5) and (6), which I will not bore the Chamber by reading, are all well-recognised in existing administrative law and procedure, and would be unnecessary. The vice of Amendment No. 127, like that of the amendment we are now concentrating on, is that it seeks to elevate Parliament into a position contrary to the European Communities Act 1972, and contrary to the supreme law of the European Union.

Lord Owen: I hesitate to intervene, particularly after two speeches by a noble Lord and a noble and learned Lord whose views I respect and who, I am fully aware, know a great deal more about this subject than I do. I have been studying this legislation for a long time, every bit as long as the noble Lord and the noble and learned Lord. At one time I had the resources of a major department of state behind me. I must say that I do not think the noble Lord and the noble and learned Lord are correct. I do not disagree with the law of this land and their interpretation of the 1972 Act, but the law of the land in other EU member states is different. There is nothing that can be said to be against the treaty of Rome, or any subsequent amendments, that can prevent this country harmonising its laws with those of other countries.

I refer specifically to the Federal Constitutional Court in Germany. It is true that that court preceded the Federal Republic of Germany’s accession to the treaty of Rome. That is a fact. Nevertheless, it was open to the German Parliaments at the time of accession to the treaty of Rome to rule that there was an inherent conflict between the continuation of the Federal Constitutional Court, the principles of the treaty of Rome and the creation of the International Court of Justice. They did not do so. I could cite other member states which have constitutional courts. By far the pre-eminent, and the one that is most respected in the European Union, is the Federal Constitutional Court of Germany, so I will confine my arguments entirely to that existing court.

I ask the Minister to confirm that there is already a case before the German Constitutional Court relating to the treaty of Lisbon. A Member of Parliament, Peter Gauweiler of the Christian Social Union, part of the governing coalition, moved that the treaty of Lisbon weakened democracy in European politics, especially

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national parliaments’ right to a say, and brought a case before the Constitutional Court. As I understand it, although I am not sure because I found it difficult to trace, the case is still before that Constitutional Court. Technically speaking, it may delay German ratification of the treaty of Lisbon. It is open to the Federal German President, Horst Kohler, to sign off the treaty if it is ratified by the German Parliament, despite not yet having had a judgment from the Constitutional Court, but it would be unusual to do so.

A similar case was made before the German Constitutional Court at the time of the ratification of the European Union constitution. It was widely felt that it would not be wise, or necessarily accepted by the then German President, for the German Parliament to ratify while that case lay before the Constitutional Court. In the event, because of the French and Dutch votes on the referendum, it was put to one side and no final decision was taken. I also understand that the president of the German Constitutional Court, Hans-J1/4rgen Papier, has called the provisions in the Lisbon treaty intended to strengthen the role of national Parliaments “ineffective” and “impractical”. He has therefore given, I presume, an indication that there is at least a case to be considered before the German Constitutional Court.

The absolute nature of the way the noble Lord presented his case, in terms of the European Union as a whole, is not correct. I accept that the way the British Parliament considered the 1972 treaty excludes it. Therefore, it can be changed only by an Act of Parliament.

Lord Lester of Herne Hill: Is the noble Lord aware that he is describing litigation under the German written constitution, which challenges aspects of the treaty of Lisbon? As he rightly says, it is not the first time that challenges of that kind have arisen in the German constitutional court. The same applies, for example, in the Irish Supreme Court where there have been similar challenges. In this country, there have been attempts also in litigation before our courts to challenge, for example, the treaty of Maastricht, the treaty of Nice and others. Is the noble Lord aware that all those attempts, which in the main have been unsuccessful, have been subject to the paramount law of the European Union, as interpreted and applied by the supreme constitutional court of the European Union—the Luxembourg court? It is beside the point whether there is satellite litigation attempting in Germany or Ireland or here or anywhere else to make challenges. The main point is that the only court that can interpret and apply the supreme law of the European Union is the Court of Justice.

Lord Owen: I do not accept that judgment and I do not believe it is accepted in Germany either. I think that the noble Lord has allowed his personal views to sway him on the actual interpretation of the German constitutional court. As German people understand it, that court can strike out any aspect of any treaty entered into by their Government if it goes against the German constitution. It is put there to uphold the German constitution at all stages. If they interpret it

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as being against the German constitution, automatically it follows that there is legislation and there would have to be superseding legislation by the Federal Parliament.

There is a long history of legal issues on this, on which normally I would expect the noble Lord to be well versed—certainly better so than myself. Having talked to many German parliamentarians over quite a long period, I know that they have always viewed this as a potential clash with the European Court of Justice. He is right that so far there has been no clash.

I should like to pursue my amendment.

Lord Slynn of Hadley: Does the noble Lord accept that, although under German law this was all done, as he says, in a lawful way, it was quite plainly contrary to the law of the European Union and is widely, if not universally, accepted to be in breach of Community law? What happened in Germany, not under the Lisbon treaty, but on a previous occasion, finally led to a settlement of the problem and agreement on how to handle it. German, French and Italian attempts to say that they could do what they like under their own system were recognised generally—I would say universally—as being contrary to European Union law, whatever their position was under domestic law.

Lord Owen: They cannot change European law, but they can challenge the interpretation of European law within the context of the Federal Republic of Germany.

Lord Slynn of Hadley: They can violate European law.

Lord Owen: The noble and learned Lord may be correct that it is a violation, but there is a conflict here. If it was so much of an overt conflict, it would have been much wiser for the Federal Parliament, when it came to accept the treaty of Rome, to have tidied this up and to have made it clear that the German constitutional court was a secondary body. It did not do so and it has inherently a conflict. I should like to move on.

Lord Clinton-Davis: As I understand it, the argument put forward by the noble Lord is that the domestic court can override the European court. That is not possible.

Lord Owen: I know that it is very difficult for noble Lords who have spent quite a lot of their time in the Commission, but I can only assure them that there is a conflict here, which is inherent in the whole of the European Union. There is a juxtaposition of European law and national law. There is a juxtaposition of supranationalism and national government. Some of these have never been cleared up—sometimes quite deliberately. On constitutional issues, in my judgment, the German decision to run the two in parallel was quite deliberate.

Lord Anderson of Swansea: Does the noble Lord accept that there is only a potential conflict? Can he give examples, as the noble Lord, Lord Lester, gave in respect of the England and Wales law, of

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where the German constitutional court, the Bundesverfassunggericht, has overridden Community law? As I understand them, the examples he has given are of a case which is now before the German Federal Court and a case which was before the German Federal Court on an earlier treaty, but which was never decided. Can he give any precedence where the Germans have given primacy to their own law, which has not been in violation of Community law?

Lord Owen: I do not claim there to be a precedent. I claim the fact that this potential conflict exists. It is no use the noble Lord shaking his hands. This conflict exists. It is discussed in German politics and it is a factor behind the political decisions taken by federal chancellors over a period of years when faced by amendments of the Rome treaty. They take it into account and they are particularly careful about it. Indeed, it has been made clear. The Federal Chancellor, Angela Merkel, has said that in some circumstances she is contemplating making a specific amendment to federal law to take account of this case. I do not want to go on too much on this. I have conceded to any noble Lord the basic fundamentals that our 1972 Act gave complete supremacy to European law.

I am just saying that there are other member states that have left this issue open, because they know that the nature of the European Union is a continuous negotiation. There are very few absolutes. It is a fact of life, although many people do not like to accept it, that the Luxembourg compromise is still accepted by many member states as existing. There are other purists who argue that the Luxembourg compromise has no legal standing and does not exist. As recently as the treaty of Maastricht, it was necessary for the French Prime Minister to assure the French Assembly that the Luxembourg compromise still existed in terms of the French Government. There are number of other inconsistencies like this. It is not quite as clear cut as the lawyers in this Committee seem to wish to think.

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