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The consequence of that would not be our departure from the EU but a renegotiation, with the other members probably recognising that for trade reasons alone—Britain being a far more valuable trading partner for them than Europe is for us—it would be to their advantage to try to meet Britain’s concerns and keep it within the fold. We would be in a very powerful negotiating position if by then we had secured the passage through Parliament of legislation removing from British law the obligation of which we and the British people believe we should be free. We would be in a much weaker negotiating position if no such legislation had been passed by our Parliament; and we would be in a still weaker position if legislation had been passed which our courts had found of no effect.

Lord Hannay of Chiswick: Perhaps the noble Lord can answer a question which I have asked in another context: why did the Governments of which he was a Member, who negotiated and ratified treaties of much greater import than this one, not introduce a clause of this kind into the legislation when they were passing it through Parliament if he feels it was so important? Secondly, now that the Lisbon treaty will contain a provision for withdrawal, would it not be dishonest and dishonourable for a Government to legislate unilaterally when there was a perfectly good procedure in the treaty under which they could get into the position the noble Lord wishes by notifying their partners that they wished to withdraw from their legal obligations and cease to be a member of the European Union? If you were not prepared to do that, then you really would be in a weak negotiating position.

Lord Waddington: I have three points to make. First, during all the great debates upon Maastricht I was not a Member of the Government. If I had been,

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I might have given the Government of the day some very good advice; it would be the same as the advice that I give to this Government. There are times when it is a very good thing to get this out of the system and to allow people to let off steam. If we had had a referendum on Maastricht it would have avoided many of the problems which followed thereafter. But it is quite ridiculous to compare the situation over Maastricht with the situation today. I cannot remember the Conservative Government promising the people a referendum and then ratting on it. The point here is that this Government promised a referendum and are ratting on that obligation.

That is the answer to the points made by the noble Lord except to say that I am not advocating now leaving the European Union. I am merely stating certain things which it would be wise to do to make sure that if we were to enter into renegotiations we would be in a much stronger position than if we had not been able to legislate to undo that which has been done in this treaty without the consent of the British people and with the collusion of Members such as the noble Lord who has just spoken.

Lord Hannay of Chiswick: I objected to the decision to have a referendum in 2004. I have objected to every single decision to have a referendum. I am afraid that I am not prepared to sit and be told that I have reneged on anything.

Lord Waddington: The noble Lord is entirely missing the point. I am not saying that a person is not entitled to take the view that a referendum is a bad instrument for dealing with circumstances such as that; I am saying that we should all agree that Governments, when they promise referendums, should honour their promises. That is the issue before this Committee. I am rather ashamed by people’s denial that that plain obligation should be carried out.

Lord Kerr of Kinlochard: That does not seem to be the issue that arises in the amendment, which appears to envisage a process of renegotiation. How does the noble Lord see that going? I presume that the renegotiation would be of some of the terms of the treaty of Maastricht, to which he and his friends have objected. At the first European Council, the new British Prime Minister would say, “The chair should please get out, because we don’t agree that there should be a permanent chair. It would be helpful, therefore, if we looked back in the alphabet and decided who, on the rotation of the chairs, should now be in the chair of this European Council”. Let us suppose that the others do not agree. One of the distinguishing marks of a treaty renegotiation is that, although anybody can ask for one, it takes unanimity to open it. Does the noble Lord think that all the other members of the European Union, having ratified the treaty—presumably because they think that it contains some quite good things—would agree that the treaty should be reopened because the British Prime Minister, in the situation described, asked for it?

Lord Pearson of Rannoch: But before—

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Lord Waddington: I do not think that the noble Lord behind me can intervene on an intervention by the noble Lord opposite. Let me deal with one load of trouble at a time.

I have an awful feeling that this debate will go on a lot longer than I ever intended. It was not me who opened up all the questions raised by the noble Lord, Lord Hannay; he raised the matters and I responded to them. I have an awful feeling that if I am too generous in my reply to him, I will be very unpopular, so let us get on with the proposition that I am advancing, which is simply this: if there is no referendum, it makes it that much more likely that there will be returned to Parliament a party with a clear mandate to renegotiate parts of the treaty, and that in office there will be a Government in a position to secure the passage through Parliament of legislation which reflects the people’s wishes. If a party had a clear mandate to renegotiate, it would be pretty fruitless to enter a renegotiation unless we had put down a few markers and said, “This is the part of the treaty to which we objected. This is the part of the treaty which was never put to the people. We have passed legislation in the English Parliament making sure that the social chapter is to be repealed”. The consequence of that process might be success or failure, but that is entirely irrelevant so far as the amendment is concerned. Quite simply, this amendment, which I would have moved in far shorter terms had I not been so generous to all those who have intervened, is designed to make sure that, in the circumstances that I have mentioned, our courts would accept the right of Parliament to legislate even when the legislation was in conflict with the 1972 Act. They certainly would not treat the legislation as being other than of no effect if there had not been a clear statement of the intention of Parliament that such legislation should override the 1972 Act. That is the simple purpose of the amendment. I beg to move.

[Amendment No. 122, as an amendment to Amendment No. 121, not moved.]

Lord Neill of Bladen: When I first came to this Chamber, experts such as the noble and learned Lord, Lord Slynn, on my left were not present. The noble Lord, Lord Williamson of Horton, was the first in, then the noble Lords, Lord Grenfell, Lord Kerr and Lord Hannay. Most of your Lordships are probably too young to remember the cricket match that was played at Lord’s every year—it is now rather embarrassing to recall it—called Gentlemen v Players. I have no doubt that I will be hearing from the noble Lord, Lord Lester, about how many discriminatory observations I have made by even referring to the title. It was an almost unbelievable class system. The gentlemen came down the central staircase at Lord’s from the Long Room on to the cricket pitch when they came out to bat. The players came out of a sort of tunnel in a remote ignominious part. To crown it all, on the order of play where the names were, gentlemen had their initials and occasionally an “hon” and players had no initials.

I am not pressing this too hard: I am simply saying that there are gentlemen, if you take my meaning, and there are players, and a lot of very expert people, so it is rather inhibiting.

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Baroness Ashton of Upholland: Oh!

Lord Neill of Bladen: I have now insulted the noble Baroness. I am sorry. I will keep going. We all greatly admire the noble Baroness and the courtesy that she shows to all speakers.

I will get on. This Lisbon treaty is a pretty tough area for amateurs to deal with. I should state the extent of my qualifications and then tell noble Lords about my disqualification. I was recently a member of this House’s European Select Committee serving under the noble Lord, Lord Grenfell, and I was on Sub-Committee E. I was one of those who considered the proposed constitutional treaty, and we spent a lot of time on that. But I was not a member of any committee that considered the current Bill. In Sub-Committee E we had a succession of extremely able Law Lords. I hope that it will not be a feature of the move across the road to the Supreme Court that we lose for ever that wisdom. If so, that is a lamentable consequence. I will not mention any names but they were extraordinarily good.

I add my congratulations to the noble Lord, Lord Grenfell, and his team on the job that they did in producing this report, which has flagged up a great many concerns and gives a tremendously good exposition on what is contained in the Lisbon treaty. I was also struck by the numerous occasions when the committee said, quite accurately and sensibly, that we would have to wait to see how it played out and that it was not possible to forecast how it would go.

I should mention as a matter of candour to this Committee that I wrote a piece once entitled “A Case Study in Judicial Activism”, which referred to the European Court of Justice. The House of Lords Select Committee at that time in 1995 was good enough to put some questions to me about it and then wrote a report. I interpose to say that I will hand my notes to the Hansard team. I have references for everything that I am saying but I will not waste time giving the references now.

The committee considering my evidence, with disciplined brevity, rejected my criticisms of the court's activities without wasting the reader's time by refuting the details of my argument, at paragraph 256. Anyway, I somehow survived that and two years later, I became a Member of this House and in due course was put on the committees that I mentioned. I have no intention of revisiting any of that ground and the controversy concerning the modus operandi of the European Court of Justice, but for practical purposes it is the interpreter of the treaty.

9.45 pm

I am sorry that the Bishops’ Benches are empty tonight because I wanted to remind them of a tremendous expression by one of their predecessors, Bishop Benjamin Hoadly, an early 18th-century divine, who held four bishoprics, starting at Bangor and going on to Hereford, Salisbury and finally Winchester. Preaching to the King in 1717, he said:

“Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them”.

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He might have been writing about the European Court of Justice as its word is absolute, or is it?

I would like to refer to the position in three member states—we had a little about this before, but I did not intervene as I did not want to get involved in that controversy or elongate it any further. However, I would like to deal with the position of Germany, Denmark, and, more recently, Poland, as it is instructive and relevant to what may conceivably happen in this country.

It is impossible to go into the long story of Germany’s position, so I will not attempt it. However, it is important to mention that its constitution was amended in 1992 to make better provision for its EU membership. Specifically, it amended Article 23(1) of the German constitution to permit the transfer of sovereign rights to the Union, but subject to certain basic principles of the constitution, including fundamental rights. That has always been the German constitutional court’s position—that it safeguards the fundamental rights guaranteed by its constitution.

A case that is generally cited, was mentioned earlier, and is relevant here is the Brunner decision of the federal constitutional court in Germany, decided in October 1993. On a question of trespassing outside the jurisdiction given to the court, the court said,

“if European institutions or agencies were to treat or develop the Union Treaty in a way that was no longer covered by the Treaty in the form that is the basis for the Act of Accession, the resultant legislative instruments would not be legally binding within the sphere of German sovereignty. The German state organs would be prevented for constitutional reasons from applying them in Germany. Accordingly the Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them”.

That is an interesting statement on a jurisdiction. The court will watch to see whether the activities of the ECJ, or indeed of any other institution within the Community, go beyond the remit of the treaties, because that is the basis on which it acceded. I believe that is the current position in German law.

In Denmark, there was a case of Carlsen against the then Prime Minister, Mr Rasmussen, which was decided in 1999 by its supreme court. It, too, has a written constitution, section 20 of which provides that powers may be delegated to an authority,

“to an extent specified by statute”.

In the context of the Maastricht treaty, the claimants argued that the powers delegated to the Community under the treaty on European Union were too ill defined to satisfy the statute’s—the local constitution’s—requirements. They made two points, the first of which was that Article 308—which we all remember—

“of the EC Treaty gave the Council an open-ended power to legislate”.

Secondly, it said,

“that the ECJ indulged in what the claimants called ‘law-making activities’”.

On the criticism of the court, the Danish supreme court said:

“The fact that the ECJ in its interpretation of the Treaty also attaches importance to factors of interpretation other than the wording of the provisions, including the objectives of the Treaty,

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is not a violation of the assumptions on which the Act of Accession was based, nor is it in itself incompatible with the demand for specification in Section 20(1) of the Constitution. The same applies to the law-making activities of the ECJ within the scope of the Treaty”.

The words,

“within the scope of the Treaty”,

are exactly the German point. So long as they are giving a judgment within the four corners of the treaty, we recognise that and that is it.

On the wider question of what the position would be if it were later to be alleged in Denmark that an EC institution had exceeded the powers conferred on it by the treaties, the Danish supreme court said that, first, there would have to be a reference to the ECJ to rule on whether it was compatible or not with the constitution. Then it said:

“Danish courts of law can generally base their decision on decisions by the Court of Justice on such questions being within the limits of the surrender of sovereignty”.

However, the courts of law in Denmark cannot be deprived of their right to try questions of whether an EC act of law exceeds the limits or the surrender of sovereignty made by the Act of Accession. The court continued:

“Therefore Danish courts must rule that an E.C. act is inapplicable in Denmark if the extraordinary situation should arise that with the required certainty it can be established that an E.C. act which has been upheld by the European Court of Justice is based on an application of the Treaty which lies beyond the surrender of sovereignty according to the Act of Accession. Similar interpretations apply with regard to Community law rules and legal principles which are based on the practice of the European Court of Justice”.

Lord Lester of Herne Hill: The noble Lord was kind enough to refer to me at one point in his speech. I was once criticised by the noble Lord, Lord Campbell of Alloway, for making a serious point after the dinner hour, which he considered to be an abuse of this House. My difficulty is that having had the previous debate before dinner, I am bound to say that I do not understand—it must be my fault—the relevance of most of what is now being said to this amendment, rather than to the previous amendment. I would be grateful to know how this bears on this amendment.

Lord Neill of Bladen: If the noble Lord is patient enough to listen, he will see when we come to consider some of the provisions in the treaty of Lisbon, which may give rise to difficult problems of determining jurisdiction. I have in mind in particular the parts in the treaty where it is said that the European Court of Justice has jurisdiction on this frontier, but over here it has no jurisdiction. That arises in connection with foreign policy.

Baroness Ashton of Upholland: Perhaps I might intervene. In the last debate we discussed in great detail the Charter of Fundamental Rights, the issues of the European Court of Justice and its jurisdiction. We were fortunate enough to hear from the noble and learned Lord, Lord Slynn, a former European Court of Justice judge. While I do not wish to prevent the

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noble Lord from continuing in his current vein, it would have been incredibly valuable to have had this speech on the previous amendment. In my role as Leader of the House, I am aware that it is important to try to bring together our debates so that we get the maximum benefit. I shall not respond to a great deal of what the noble Lord is saying because I already have on the previous group. It might be of greater benefit in this debate if we were to focus on the particular aspect of the amendment, which is the role of Parliament and the issue of sovereignty, rather than debating issues that we have debated before. I say that with the greatest respect to the noble Lord, Lord Neill of Bladen, but we have already covered a huge amount of this ground.

Lord Neill of Bladen: It is a difficult judgment as to whether one should intervene in someone else’s amendment on which a lot of argument was going on or whether one should keep one’s powder and shot for an amendment for which I have actually put my name to. I naturally thought should I get up and interrupt and in the end I decided not to. I may have got that wrong. Essentially I think it is important we should not be too insular in these matters and that we should be aware of how other countries deal with these questions and in particular their stress on the need for the court to remain strictly within its jurisdiction.

In view of the lateness of the hour and what the noble Lord has said, I suppose I should spare you what the position is in Poland. Essentially the Poles have said that the national law is supreme, that there is a limitation on the powers of the EU—exactly the same point as the Germans—and that they reserve the right to consider the clash that might arise if some provision in the constitution was in conflict with Community law or a Community decision. They look at the possibilities that might be persuading the EU to alter their ruling, amending their own constitution or leaving the EU. None of this is challenging the basic position, which we were discussing before dinner, of the sovereignty of the EU court in so far as it decides things within its remit.

If we look at the position in English law, the general conventional wisdom is that the 1972 Act could be repealed by a straightforward Act saying that that was the will of Parliament. It is a little less clear what the position would be in relation to some particular doctrine or part of European law. Could we single that out and do so in clear language that was not to form part of English law? Lord Denning looked at that in the passage cited by Lord Waddington, in which he discussed what would happen if the time comes when Parliament passes an Act repudiating the treaty or any provision in it. He went on:

“I should have thought it would be the duty of Parliament to give effect to it.”

Lord Justice Laws in the Thorburn case, which was also mentioned by the noble Lord, Lord Waddington, said that,

“In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of

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the 1972 Act were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case”.

He does not say what the answer would be if that situation did arise and he is not looking at the issue which I flagged up for your Lordships; that is, what happens if the EU measure in question is outside the four corners of the treaty or that the ECJ gives a judgment in an area which is not committed to?

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