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I have a quick example from when Mr Major was Prime Minister. He was shocked. He went to Maastricht and returned, notoriously saying, “game, set and match”. He then found that things were changed not by Parliament, the Commission or the European Parliament, but by the European Court of Justice. He wrote to Mr Santer, the then President of the Commission saying:

The next paragraph is important:

The letter continues:

The noble Lord, Lord Owen, was quite right to highlight this. Regardless of what Parliament agrees, what the electors elected Parliament for and what the European legislature or the Commission say, the European Court of Justice can, unilaterally, change agreed European arrangements. That is very important. I would be interested to hear what the noble Lord has to say about that in his response, and, indeed, what the Minister will say now.

Lord Pearson of Rannoch: I know that we are in a hurry for the dinner hour, but I would like to congratulate the noble Lord, Lord Owen, on his courage in moving this amendment. If a former Foreign Secretary does not today understand the extent of the trap that we are in with our European Union membership, then how can ordinary members of the public? I will spare your Lordships the quote from Section 3 of our European Communities Act 1972 because I have already put it on the record in these proceedings. I have to say to the noble Lord, Lord Owen, that I support his amendment. I fear that the lawyers in this House are absolutely right. I put it to the noble Lord that the only way out is the door.

Lord Hunt of Wirral: I shall speak to Amendment No. 159, which is in this group. This has been a fascinating debate. I thank my noble friend Lord Blackwell and the noble Lord, Lord Owen, for having stimulated a most useful occasion, highlighting some of the constitutional aspects of the issue that we face.

My noble friend Lord Lamont went straight to the point. As a result of what has been said in this debate, the Minister needs to tell us exactly what the protocol’s effect is. The noble and learned Lord, Lord Slynn of Hadley, stated very clearly that it is essential to have a court to give final interpretation on European law. The noble Lord, Lord Lester of Herne Hill, highlighted that the paramount law of the European Union must prevail where it reigns. Where it does, Luxembourg is supreme. My noble friend Lord Blackwell has done us all a great service by highlighting the issue. We profoundly object to the extended jurisdiction that will be given to the European Court of Justice in relation to the police, judicial co-operation and criminal law. I will just say to him that we would like to give further consideration as to whether his amendment is the best way forward in providing a safeguard for our criminal justice system in this area.

The speech of the noble Lord, Lord Owen, was hugely helpful in reflecting on a sort of paramount, panoramic picture of European law; it also particularly came across from the noble Lord, Lord Thomas of Gresford. The noble Lord, Lord Owen, gave us all a fascinating insight into the internal workings of not only the German federal constitutional court, but proceedings in France.



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Lord Lester of Herne Hill: Is the noble Lord aware that one of the great pluses of the treaty of Lisbon protocols is that, when we believe that a proposed European measure violates the principle of subsidiarity, our national Parliament will for the first time be able to have access, in ways to be agreed in due course, to the Court of Justice? Therefore, under this treaty and arrangements for it here—the amendment against it has been withdrawn so we cannot debate it—the democratically elected Chamber and this House will together, with the Government, for the first time, be able to challenge a measure for overreach.

Lord Hunt of Wirral: Yes, the European Court has the final word—I am not quite sure what point the noble Lord was trying to make. However, I know that we want to move on, so let me just say that the implications of the amendment tabled by the noble Lord, Lord Owen, are sufficiently far-reaching to require additional examination before we can consider such a potentially profound overhaul of our legal arrangements.

I have to say to my noble friend Lord Lamont that I am a lawyer—a real one, as many colleagues in the solicitor’s profession would say—one of the few practising solicitors in this House. Of course, we always have to consider the arguments put forward from barristers on one side and the other—not, I hasten to add, in a judicial way but in a reflective way—when we are seeking to explain the legal position to our clients. Therefore, as a lawyer, I found that the noble Lord, Lord Owen, made a positive contribution on which we would like to reflect.

However, my Amendment No. 159 calls for an annual report to be laid before Parliament on the impact of any preceding rulings of the European Court of Justice on the United Kingdom. This report was called for by our Constitution Committee. I hope that the Government will give that recommendation the respect that it deserves. In giving evidence to the Constitution Committee, the Government laid out all the ways in which the European Court of Justice’s jurisdiction will be expanded by this treaty. The list relates closely to debates we have had in this House on various parts of this treaty. For instance, the charter, the impact of the common foreign and security policy and the increased co-operation on home and judicial affairs are all areas that we have mentioned several times. No doubt we will return to those issues in the future.

It has been made perfectly clear in the contributions that we have been listening to that much of the opposition to these provisions is driven by uncertainty about the impacts of future ECJ judgments. We simply cannot tell whether their powers will be used to drive the European Union towards eventual federation—is that fear unfounded?—or instead whether the European Union will develop with complete agreement between all the participants about their role within it.

The Government, in promoting this Bill, have sought to downplay their inability to predict the future. They confidently proclaim that only positive results will come from the increased remit of the European Court of Justice. However, their optimism has failed to convince many.



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This report in Amendment No. 159 will allow the Government to proclaim in future just how wrong we all were in getting so concerned, but it will give Parliament a chance to identify and protect against the undue interference and perceived loss of national independence that may follow. I sense that the general public are very confused about the situation. They are hungry for knowledge about what the EU does and would enjoy the opportunity coming from a debate on that report to learn about the treaty’s effects.

Finally, in this place we have frequently opposed the gold-plating of EU directives—a practice that allows the Government to push unpopular Labour policies through Parliament while refusing responsibility for their impact. As a result, the European Union always bears the blame, in many cases unfairly, for what were Labour additions to a relatively harmless directive. Resentment also builds up because of the perception that it is only the United Kingdom that obeys and pays the full cost. That is a well known myth, but to some extent a very damaging one for those who believe so passionately in Europe.

The Government have frequently claimed that our concerns and those of the public are unfounded because we do not understand the real situation, but they bear a great deal of the blame for any misunderstanding we might have. They have consistently rejected any of the various reporting or clarifying measures that we have proposed. I can only hope that the arguments of the Constitution Committee will be more successful and that Amendment No. 159 will at least meet with a positive response.

8 pm

Baroness Ashton of Upholland: This has been a long and very interesting debate. I thank all Members of the Committee who have participated, not least those who have tabled amendments in this group. I am conscious that I am all that stands between noble Lords and dinner so I shall try to deal with matters expeditiously, although I intend to cover as much as I can in the full and certain knowledge that this is an issue to which we shall return and continue to debate. Although there have been many contributions, for many noble Lords there has been much food for thought as well, which I sense they will go away and deliberate on. I shall set out as clearly as I can the current position.

I go back to the beginning and to something that I said at Second Reading. Noble Lords need to have this clearly in their minds when considering the European Court of Justice, a much maligned organisation in many of the contributions. Whether noble Lords like it or not, the European Union is an organisation which needs rules; if you have rules you have to be able to enforce them. The European Court of Justice is the mechanism, put crudely, which enforces the rules. Making it effective as a court is in our interests. It ensures that member states respect the European Union rules—that there is a level playing field, particularly for our businesses in the single market, and protection for our citizens in the rights that they have as members of the European Union. I think it helps to destroy, as the noble Lord, Lord Hunt of Wirral, said, the myth

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that somehow we implement and other nation states do not—that we do it properly and other member states do not.

When member states interpret and apply European treaties, the court’s role is to ensure that European law is observed. The member states make the law. The European Court of Justice does not make the law; that is not its job. Its job is to interpret the law. We will have fully participated in any law that is made in Europe. The European Union in its competences is able to make laws on subjects only with the approval of the member states. We are not absent players; we are part and parcel of the system. That is really important because it is suggested that somehow the European Court of Justice operates on its own, outside the law and outside the European Council of Ministers, as though it were a body that made law. As the noble and learned Lord, Lord Slynn, said, on a previous day in Committee, although the court has spoken and interpreted the law, that law is binding. The Council can change the law and practice. It may not do so very often but it can do so; that is not beyond it.

Lord Pearson of Rannoch: Does the Minister agree that in the debate to which she referred, she had to confess that the Council of Ministers had never repealed a law and that, for it to do that, unanimity in it would be required? It is unrealistic; it has never happened and it will not happen.

Baroness Ashton of Upholland: When I said it might not do it very often, I was referring to the future. It might not do it; it might not do it very often; and it has not done it; but that does not mean that it cannot do it. We just have to be clear what we are describing, but it has the power and the capacity to do that. Unanimity is argued for by most noble Lords opposite as being of great import, so I do not see that as a problem; I see that as a positive, if what the noble Lord, Lord Pearson of Rannoch, usually says about unanimity is right. The European Court of Justice interprets the law. If the Council, in its wisdom, decided that it did not like that interpretation, it has the power and the capacity to change it. That principle is important. It is the same with this Parliament and national courts.

When we joined the European Union, the principle of primacy was already there. It is not new; it has not been invented by this treaty or by Maastricht. It is a fundamental part of having a European Union, where you are trying to apply rules that you have made across the Union. That is very important. If you make rules, you need a mechanism to enforce them, but it is not open to a member state to decide that it does not fancy a certain rule one day and, therefore, will ignore it and change it. There is no point in being part of a Union on that basis.

The Lords Constitution Committee report is often quoted and I shall quote the implications that it has described on this. It states:



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So the ultimate ability to leave the European Union is there. On a previous day in Committee we debated the withdrawal article in the treaty. If noble Lords do not wish to be bound by European law, that is the way to address the matter. As I have said, it is in our interests and it has been a fundamental principle. In 1972, the then Solicitor—General, now the noble and learned Lord, Lord Howe—I hope he will not mind me repeating his words—said:

That is the principle. The doctrine of parliamentary sovereignty remains a cornerstone of our constitutional arrangements and is unaffected by ratification of the Lisbon treaty. That, in a nutshell, sets out in our involvement in the European Union.

Let me try to deal with some of the issues that have been raised by noble Lords. In moving the amendment, the noble Lord, Lord Blackwell, raised two examples. The first was whether, if we did not opt in, the UK courts could be influenced by EU law. If we do not opt into a measure in the area of justice and home affairs, it will not form part of our law and, therefore, our courts would not apply it. It is as simple as that. Noble Lords also asked about the European Court of Justice and the charter. The noble Lord, Lord Lamont, referred to what the noble Lord, Lord Kingsland, had said and much has been made of what the noble and learned Lord, Lord Slynn, and the noble Lord, Lord Hunt of Wirral, raised. I shall try to be as clear and succinct as I can on that.

The charter sets out existing rights. In our previous discussions, we described the backdrop to the charter. The different articles in the charter come from different places: the European Court of Human Rights, EU law or principles in the operation of EU law, and so forth. I shall not go back through all that. The European Court of Justice can apply the charter only to the same extent that it applies the existing rights. That is a critical point. As the UK protocol makes clear, no court—European Court of Justice or other—can use the charter to extend its jurisdiction to attack UK law. I think that is clear and I hope that noble Lords will reflect on that.

The noble Lord, Lord Owen, made a very interesting contribution. I am glad to hear he has regained his voice. In speaking to Amendment No. 127, he spoke much about other jurisdictions and particularly about the German constitutional court. I hope the noble Lord will not be surprised that I, too, looked at the German constitutional court and at the French courts—the Cour de Cassation and the Conseil d’√Čtat, which are the two courts that have had an interest in EU legislation as well.

Let me back up a lot of what has been said. I will not enter the lawyers’ debate that surrounded that, for obvious reasons—I am not a lawyer and I would not pretend to intervene in that way. I recognise that the German Constitutional Court plays a very particular role. What it does is test legislation and government

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action against the national written constitution. It therefore has a specific focus. That focus is on the national constitution. This is an important backdrop to understanding what the court does. The Court considers that in principle it can decide on the compatibility of Community law with the German constitution but it has never challenged European Community law.

Let me give two examples quoted by noble Lords. The court questioned the compatibility of EC law with human rights. The European Court of Justice confirmed that it applied human rights as part of EC law. The German court accepted that, as long as EC law was compatible with its own constitutional safeguards, it would respect the primacy of EC law. That case—the Solange case—was a case that was referred to by a noble Lord on the Liberal Democrat Benches.

The other example was the question that the noble Lord, Lord Owen, referred to—the Brunner case. The court made clear it could review the compatibility of EU treaties with the German constitution but found no incompatibility. There is a case before the German Constitutional Court at present. There is nothing new in that. These cases have never resulted in a member state being prevented from ratifying a treaty but I am not going to comment on it because it is before the court and I am advised that I should therefore not make any further comment on that.

Tomorrow I will be going to Peru with Chancellor Merkel. While I am there I will approach her officials to see if I can get any more information about the German Constitutional Court and the current activities. If I do, I will either write to noble Lords or make sure that we have an opportunity to come back to this.

The noble Lord, Lord Owen, talked about the Luxembourg compromise. As far as I am concerned, that is well outside the treaty. It is a political determination. It involves, as I understand it—I am sure that noble Lords will leap up to correct me if I am wrong—the situation where a member state feels that there is something so fundamental going on that they ask for a pause or stay in the discussions in order to examine that properly. It is a political commitment—it has no legal status, as I understand it. As far as we are concerned, it still exists. It has not been used, as far as I know, for a while—certainly not by us—but it exists because it is about the politics of nation states working together.

The noble Lord, Lord Owen, asked about the Dutch position. He is much exercised that I had not yet made contact with the Dutch in order to discuss the double-hatting of the High Representative or the Commission President. I have not done that—like the noble Lord I have huge respect for the Dutch courts and for courts across the European Union—because it is the responsibility of the UK Government, working with its own legal advice, to look at the treaty and to interpret what we believe to be the correct position. When I was in Brussels recently, I discussed this position with officials in order to make sure that the interpretation was right. Actually it is spelled out in the treaty. Noble Lords can go to Article 17 of the European Union Treaty and find references to Article

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245 on the functioning of the European Union. To put it in a nutshell, if you are President of the Commission or if you are the High Representative and therefore a Vice-President of the Commission, you are part of the Commission. Article 245 states:

If that were amended, the treaty would need to be amended so it is impossible for the President of the Commission and the High Representative, who is Vice-President of the Commission, and the Council President to double-hat because the two people in the Commission are not allowed to hold any other role. In order to double-hat you need two out of three to be involved but two out of the three cannot do it. I have not used government resources and therefore taxpayers’ money to talk to the Dutch about this because in my view the position is crystal clear.

As I said, we are clear about the primacy of European Union law and we are very clear on the role of Parliament. We believe that this position is exactly the same as it has been before the treaty. It is an important position. If this Parliament decides it does not wish to be part of the European Union that is within its gift. While it is part of the European Union, however, laws that we have participated in making fall to the European Court of Justice to interpret.

The noble Lord, Lord Hunt, talked about Amendment No. 159. It was interesting that the noble Lord made it clear that he is unhappy about pillar collapse. The preamble to this was his worry about what is now part of the JHA opt-in; essentially, that involves pillar collapse from pillar 3 to pillar 1. I would be very interested to know what the noble Lord would wish to do on behalf of his party about trying to change that if this treaty were not to be ratified. Would he want to keep the Third Pillar as it currently is? I will wait for another occasion to discuss this.


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