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I should like to draw attention to the basis of Amendment No. 127 and to deal with a small number of points. I agree that subsection (2) of the amendment is otiose.

Lord Hannay of Chiswick: I think that the noble Lord’s interpretation of the nature of the Luxembourg compromise is not relevant to what we are talking about. No one in any member state that I know of or any British Government have ever said that the Luxembourg compromise was part of European Union law. They said that it was part of European Union practice and part of the policy of the Governments who supported it. In any case, the Luxembourg compromise is not a compromise. It is an agreement to disagree between those member states who take one view and those who take another. It really is not relevant to the discussion on this group of amendments, which is about the application of European Union law.

Lord Owen: If the noble Lord would look at the debate in the French Assembly, he will know that it was said that this was no longer possible, because

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there have been changes in the treaty of Maastricht which meant that it was no longer possible to invoke the Luxembourg compromise. The French Prime Minister came down to the Assembly and gave a very clear, legal interpretation that it had not been changed by the Maastricht treaty and that it was still perfectly legal for the French Government to invoke the Luxembourg compromise. If the noble Lord reads the debate, he may like to come back on the issue. Perhaps, because of my views on these issues, I may have studied it more than he has in this instance.

Everyone likes to try to believe that the European Union is a tightly constructed and perfectly legal system. It is not. It is, above all, a negotiation between member states, which is why I would urge the Committee to have a look at the new clause. I know that I cannot possibly push this through with the resources that I have available. All I can ask is for the major parties to have a look at it.

Turning to points of detail, this new clause is drafted to make it clear. It is an educative exercise and subsections (2), (4), (5) and (6) of the new clause proposed in Amendment No. 127 may not be necessary. The noble Lord is right to say that the essence lies in subsection (3). But behind it lies a very important question. Experience since 1972 has made many of us realise that while we may pass a treaty amendment in the British Parliament, and genuinely believe at the time that we do so that it means one thing, we have seen cases—the classic example is the health and safety directive—where the interpretation of the words of the treaty as understood by both Houses of the UK Parliament were later changed by the European Court of Justice in defiance of what almost everyone believed was the correct interpretation. It is because of that that many of us worry about having no way of challenging the interpretation of the European Court of Justice.

Whether we like it or not, our law is founded on the basis that the clarification of law by the courts, which goes on in many different ways, relates back to what is said in this House about the law of the land. It may not be perfect but it means that we have some control over the lawyers.

Lord Lester of Herne Hill: The noble Lord seems to be under a misapprehension. When judges in this country have to decide what is the intention of legislation, they do not do so on the basis of what is said in this House or the other House—that is neither here nor there. They do it on the basis of interpreting and applying the objects and purpose of the legislation and the language of the legislation read by them as independent courts. It is a mistake to think that anything that is said by Ministers or anyone else about what they think the law is becomes what the law means. Separation of powers means that it is up to the judges to decide that and not up to us as lawmakers. We make the law but the judges interpret and apply it. There is a fundamental difference between the two.

Lord Owen: If the noble Lord is saying that when the justices make the case they do not bear in mind the argumentation that goes on about what is said in both Houses of Parliament, I am surprised. I do not deny

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that it is their judgment that makes the law of the land; the words and the interpretation of those words lies in the courts of law of this country. But in regard to the framing of those words and the way that they are put—as the noble Lord knows perfectly well because he has been on the other side in government—parliamentary draftsmen take Ministers through with extreme care what the words are meant to mean. The interpretation and explanation of the words by Ministers is taken very seriously because it is thought to have implications for how a future judge and court will interpret those words. But if what the noble Lord is saying is right, then we might as well give up having debates, go home and let the judges and the lawyers decide everything.

Fortunately, we have a system in this country where there is an input from the normal, average person about what words mean. This is one reason why I have always thought that you could go to a court and argue that the words mean a certain thing. But, of course, the judges will decide. They will not be bound by Parliament—nor should they be—but, equally, I do not think that they ignore Parliament. This is obviously touching some sensitive nerves but I still come back to the fact that legislation has been passed as treaty amendments and interpreted by the European Court of Justice in a way that we did not consider the words meant at the time.

I considered whether or not to try to create a constitutional court and I came out against it. We now have the Supreme Court—in name but with hardly any considerable change in judgment—and, having taken on this well-respected name with all the authority it incurs, it would not be unreasonable for the British Parliament to consider, in the light of experience since 1972, whether we need some further safeguarding of the terms of the wording of treaty amendments. If the Supreme Court made a judgment that the interpretation of the European Court of Justice did not correspond with the intention of and the explanation to the British Parliament, there would be a clash. Such a situation would be extremely helpful.

I return to the question of the double heading of the President of the Commission and the President of the European Council, an issue that I have raised before in this House and which I still see as a potentially great danger. I wrote to the noble Baroness explaining why the Dutch Government, in March 2004, took the view on the European constitution—this is my own translation—that:

They went on to say:

In addition, the Dutch Government’s internal legal advice was that Article 21(3) of the then European constitution stipulated that,

and should be read explicitly as only excluding national mandates and not other—read European—mandates. Since then there have been further wording changes

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introduced, predominantly by the British Government with, I think, the understanding of the Dutch Government. I asked the noble Baroness to see whether she could, through bilateral talks with the Dutch Government, reach some understanding and a common interpretation of this. We have good and friendly relations with the Dutch Government. They are now much more attuned to our view about the nature of the European Union—they are not the federalists they once were—and it is not unreasonable that we should get some explanation from the British Government of the Dutch Government’s view. In international law the Dutch Government is extremely well respected, and I would find it much easier to live with the present treaty if I thought that the Dutch Government shared the British Government’s interpretation of double heading.

But double heading is another example of where, despite constant promises by the noble Baroness—I know she has gone into this very carefully—and genuine assurances by the British Government that it is impossible, there are still at this moment campaigners in Brussels who are arguing that this is the next step, and they believe that it is possible to do it within the treaty. That is a fact. You can go on to the blogs of the people who believe it and read the speeches made about it by serious European politicians. Every statement that the noble Baroness makes is helpful to this House, but it is not sufficient. We could still have an interpretation put on the wording in the treaty which is diametrically opposed to the assurances that we have received from the present Government. It may not come in 10 years’ time or in 20 years’ time, but this challenge will come. For that reason and for many others, one of the ways to deal with it would be through the amendment that I have tabled.

Lord Thomas of Gresford: I take it that the noble Lord has sat down and that I am not interrupting him.

Lord Owen: Yes.

Lord Thomas of Gresford: I should tell the Committee about a case I was involved in as lately as last Friday in the Court of Appeal. It concerned the prosecution rights of appeal, a matter that we discussed at length in Committee, on Report and at Third Reading in the Criminal Justice Bill 2003. My opponent for the prosecution had raised the issue that the clear words of the statute did not represent the intention of Parliament and I quoted to the judge the words of the Attorney-General, the noble and learned Lord, Lord Goldsmith, which made absolutely clear what the Government had in mind in passing that legislation. The Lord Justice presiding said to me that that was very interesting, but that there was no obvious difficulty in interpreting the clear words of the statute, that various things had been said in Parliament on all sides and that if the courts started to take notice of what was said in Parliament in that sense, they would be completely confused. I was surprised, because I thought that, on the Pepper v Hart principle, the words of the Attorney-General would be accepted as definitive. But there was no difficulty in interpreting the statute, notwithstanding the arguments of my opponent, who sought to put a gloss on it that the Court of Appeal did not accept.

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My noble friend who explained this was absolutely right that it is with the words of the statute that we are concerned. As early as 1964, long before we entered the European Union, the European Court ruled in the case of Costa that,

That applies to Germany as to any other country. The court continued:

They were clear statements. With those in mind, we entered into the 1972 agreement and passed the European Communities Act 1972, which contained precisely that principle. Shortly afterwards, in 1974, Lord Denning, in the case of Bulmer v Bollinger, said about it:

That was a statement of principle two years after the European Communities Act. The rationale for giving primacy to European law, as decided by the European Court of Justice, was expressed by the noble and learned Lord, Lord Bingham, in his High Court judge days in 1983, in the case of Commissioners of Customs and Excise v Samex. He said that,

Those are the views of Lord Denning and the noble and learned Lord, Lord Bingham. They are clear; the legislation is clear. There is no doubt about what it said in 1972, and it incorporated principles that had been expressed by the European Court years earlier in 1964. I am amazed that in 2008 we are still questioning the primacy of the European Court of Justice.

Lord Anderson of Swansea: The noble Lord has done the Committee a service by citing those important judgments, which all lead in the same direction. I was fascinated particularly by his citing of Lord Denning, because, on any version, he was not the most ardent of Europeans—I think of his “nooks and crannies” speech. He was absolutely clear about the position: that European

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law is one which member states are bound to accept. The noble Lord, Lord Owen, spoke about the German federal court, but that court made no specific declaration in respect of the primacy of European law, because it is wholly fundamental—there was no need for the German federal court to accept it. The hole in the noble Lord’s argument was that, try as he might, he could not cite a single case—he noble Lord, Lord Lester, cited an array of cases—where the German federal court has overridden the European Court; all he could do, at the high watermark of his submission, was say that there is currently a case before the German federal court—I am surprised that that has not been struck down in limine, as it probably would have been in our own jurisdiction. There was a potential case, too, in respect of Maastricht. But the truth is that the Community law is paramount; indeed, our own courts would make references to the European Court of Justice for preliminary rulings in respect of that interpretation.

The noble Lord, Lord Blackwell, said with due humility that he was not a lawyer; the noble Lord, Lord Owen, followed in that same vein. If the ordinary man were asked to perform a judgment as to whether the views of the noble Lords, Lord Blackwell and Lord Owen, should be given greater weight than those of the noble and learned Lord, Lord Slynn, whose background in the European Court we all know and respect, or of the noble Lord, Lord Lester, one wonders where the weight would fall.

I shall not detain the Committee. These amendments seek to drive a coach and horses through the fundamental principle of European law. Our own jurisdiction and all others have decided on the primacy of European law. To do otherwise and have individual courts in the 27 member states deciding what that law is would be destructive and run wholly counter to the obligations to which we have subjected ourselves.

Viscount Trenchard: I, too, am not a lawyer, but I nevertheless support the amendment of my noble friend Lord Blackwell. I was interested by the intervention of the noble Lord, Lord Anderson, who correctly pointed out that if the ordinary man—I think he meant the man on the Clapham omnibus—were asked whether my noble friend Lord Blackwell or the noble Lord, Lord Owen, were likely to be more correct in interpretations of law than the noble and learned Lords who have spoken, he would surely disagree. Nevertheless, the man on the Clapham omnibus would surely think that things ought not to be so, because he would prefer that this Parliament, to which he elected his representative Members, were more important in determining matters of law and criminal justice than a place across the sea in Brussels—where I worked for the whole of 2006.

One reason why the United Kingdom has been so successful in attracting investment from companies around the world is that its legal and justice system is held in such high regard. It is thought to provide stability, clarity and a good place in which international companies can establish headquarters in this time zone and run their businesses in this region. Therefore, anything that further weakens that clarity, such as the introduction of qualified majority voting—

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notwithstanding opt-ins and opt-outs—into the area of criminal justice, which further weakens the authority of the United Kingdom Parliament to make our own laws, will reduce rather than enhance confidence in our legal system. I worry that that would reduce the attractiveness of the United Kingdom as a destination for investment from around the world. Both amendments enhance the attractiveness of the UK rather than the reverse, and I support them.

Lord Lamont of Lerwick: We have had an extremely interesting contribution from the noble Lord, Lord Owen. It produced strong reactions from the lawyers present, all of whom talked with great precision, authority and emphasis. None the less, I doubt whether the argument will end with this particular debate. The noble Lord, Lord Owen, has opened something of a Pandora's box. I hope that what is said in this debate will be reported and heard in the Federal Republic of Germany and that people there will hear what the Minister says about this issue and about the position of the Federal Constitutional Court of Germany vis- -vis European union law. The noble Lord, Lord Owen, made an extremely worthwhile contribution.

In the light of that and of the categorical statement of the noble and learned Lord, Lord Slynn, that EU law must be applicable in every state, I return to one of our earlier debates about the protocol and the Charter of Fundamental Rights. Bearing in mind what the noble and learned Lord said about EU law being applicable everywhere and there being no question of tiers of law, I have a question for the Minister. I know that she will say that we debated this before but will she again explain the effectiveness of the protocol in the light of the noble and learned Lord’s statement and the particular point raised by my noble friend Lord Kingsland? What happens when a judgment is made in a country outside the UK—another country where the Charter of Fundamental Rights has a different effect? How can we avoid law made in other countries having to be applied in that sense and in the light of a judgment made in this country? What the noble and learned Lord has said might be interpreted as strongly supportive of the point made earlier by my noble friend Lord Kingsland about the Charter of Fundamental Rights.

Lord Stoddart of Swindon: I do not want to speak for long, but I welcome this debate and thank the noble Lord, Lord Blackwell, for moving his amendment because we have had clarification from such expert noble Lords that they need congratulation. If the amendment moved by the noble Lord, Lord Blackwell, were put to the vote and carried, and the House of Commons agreed to it, we would have to leave the European Union, which from my point of view would be desirable. But I do not believe that people understand how far we have become subject to European law. The noble Lord, Lord Lester, made it clear that matters European are becoming greater and greater. With every treaty that we pass, their powers become greater. European law becomes greater. Therefore, the position of our courts and of this Parliament is consequently weakened.

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The noble and learned Lord, Lord Slynn, who helped us earlier on in our debate has confirmed that the European institutions and courts are superior, not only to our own courts, but to our own Parliament. This Parliament dare not pass legislation that is against European law. Otherwise, it will have to be struck down. This debate has served to emphasise that point. It will be interesting to hear what the noble Baroness the Leader of the House will say. I do not believe that she can say anything different from what has already been said by the noble and learned Lord, Lord Slynn, and the noble Lords, Lord Thomas of Gresford and Lord Lester. She will have to confirm exactly how far the independence and sovereignty of this country have been reduced by various treaties since the 1972 Act.

The noble Lord, Lord Thomas of Gresford, quoted Lord Denning. I have quoted him previously on this, but I will do it again because it is so good. He made it clear in this House on 31 July 1986, saying:

Nothing can be clearer than that.

Lord Willoughby de Broke: I rise to support a point made by the noble Lord, Lord Owen, which nobody else has picked up, but which is central to the debate. He said that we agree not only to laws passed by Parliament; we also agree to treaty law in Parliament. That is why we are discussing the Lisbon treaty. It goes through the Commons, comes to this House, we debate it and eventually agree the various provisions. It is agreed by the Government and that is that. That is the position as the Government understand it. However, the noble Lord was right to say that that is no longer the case. When we agree these laws, they are then liable to be changed by the European Court of Justice without recourse to the agreement of Parliament.

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