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Lord Hannay of Chiswick: I think that the noble Lords 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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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 casesthe classic example is the health and safety directivewhere 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 Housethat 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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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 Parliamentnor should they bebut, 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 Courtin name but with hardly any considerable change in judgmentand, 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 constitutionthis is my own translationthat:
The Government also shares the opinion [of parliamentary factions] that the possibility should be kept that in future the President of the Commission can also be the President of the European Council.
and should be read explicitly as only excluding national mandates and not otherread Europeanmandates. Since then there have been further wording changes
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But double heading is another example of where, despite constant promises by the noble BaronessI know she has gone into this very carefullyand 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 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.
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,
The transfer by the States from their domestic legal systems to the Community legal systems of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.
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:
When we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law ... The governing provision is section 2(1) of the European Communities Act 1972 ... The statute is expressed in forthright terms which are absolute and all embracing.
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 EuropeansI think of his nooks and crannies speech. He was absolutely clear about the position: that European
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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 manI think he meant the man on the Clapham omnibuswere 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 Brusselswhere 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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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-Ã -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 Lords statement and the particular point raised by my noble friend Lord Kingsland? What happens when a judgment is made in a country outside the UKanother 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.
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:
Acts of Parliament and decisions of our courts have been set aside and rendered invalid by decisions of the European Court, which is superior in all matters of EEC law not only to British Courts, including the House of Lords, but also to Parliament where their Acts past, present or future have been, can be and will be declared illegal by an overweening court sitting in a foreign capital.[Official Report, 31/7/86; cols.1055-1060.]
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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