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We have had a lot of discussion about the Lisbon treaty. I have referred to the foreign policy borderline—details are in paragraph 4.176 of the committee’s impact report. Other problems are referred to in part 7 in paragraph 7.50, where there is a reference to Article 39 and the fact that the ECJ has no jurisdiction whatever in that area. I am putting into your Lordships’ minds the thought that we could get situations where it was unclear and there could be a debate whether a law, regulation or directive made by one of the organs of the EU, or whether a judgment of the ECJ, was within the limits of its jurisdiction. In that case, I think that it would be open to challenge in this Parliament and an Act could be passed expressly disclaiming part of the new instrument or the decision by the court. The nuclear option, of course, is to give notice, as has been suggested, under the provisions in the Act.

I support the amendment on the basis that it would be important to the public to know that the Lisbon treaty had been incorporated; otherwise, they will know nothing. The earlier debate this evening has shown the level of knowledge about EU law. Almost nothing is known by the general public about what is being done in their name, but there would be some satisfaction in having a clause which said that Parliament retained its full sovereignty to repeal the Act.

10 pm

Baroness Ludford: I want to return to remarks made by the noble Lord, Lord Waddington, in moving the amendment. He said that one party would pledge to renegotiate the Lisbon treaty if it was ratified. Am I correct in thinking that he was implying that it would be the Conservative Party? If so, perhaps I may address a question to the Conservative Front Bench and ask the noble Lords, Lord Howell or Lord Hunt, whether they agree that it is Conservative policy to renegotiate the Lisbon treaty. I think that the Committee would be interested to know whether that is the case.

I also wanted to go back briefly to what I believe is the substance of the amendment.

Lord Waddington: Is the noble Baroness asking me a question? If she is, I can answer it briefly. This debate will go on for ever if we open up the question of who might be elected and what they might do. I am simply saying that if, having been elected, a Government felt that they had a mandate to renegotiate, it would be very important to have an amendment such as this one on the statute book to make a reality of that renegotiation. That is all I am saying.

Baroness Ludford: That still leaves me with the question of what is meant by having a mandate to renegotiate, and I should be interested in having an answer to that. I wanted to go back to what I believe is

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the substance of the amendment—that is, the supremacy of Parliament. It seems to me that, after getting on for three hours of debate on these issues, it is absolutely clear. Indeed, my noble friend Lord Lester of Herne Hill suggested that a first-year law student would know the answer—that the UK Parliament is indeed supreme. It can repeal the European Communities Act. As the noble Lord, Lord Hannay, pointed out, there is now a specific provision in the treaty on withdrawal. Therefore, it is utterly clear that the UK Parliament is supreme. It can decide to repeal the European Communities Act, but that would mean that we would no longer be in the EU. There is no third way.

Lord Waddington: The noble Baroness completely misses the point. The point is whether the European Communities Act could be disapplied in a particular case. That is what we are arguing about. It may be right or it may be wrong, but that is the point that we are arguing about. If in a statute we said in clear words that we wanted to do a particular thing, notwithstanding the European Communities Act, would that be good law? That is what we are talking about, but the noble Baroness is labouring on about an entirely different point.

Baroness Ludford: I was about to go on to say that there is no third way. You are either in the European Union or you are not. If you are in the European Union, as the noble Baroness, Lady Ashton, said earlier, you have to apply the rules of the club; otherwise, as the noble and learned Lord, Lord Slynn, said earlier, there will be chaos and anarchy. This is a club in which there is the rule of law. Of course, we can defy the European Court of Justice but that would be incompatible with membership. Ultimately, we would be found to be in infringement of the EU treaties, and either by our courts or the ECJ incompatible legislation would be struck down. Therefore, while we are in the European Union we have to respect the primacy of EU law. The noble Lord, Lord Waddington, said that he was not advocating leaving the EU but—I am sorry but I have to repeat this—there is no third option. You are in and respect the rules—and ultimately can be found in breach either by our courts or the Luxembourg court—or you exercise the absolute right of Parliament, which is supreme, to leave the EU by repealing the European Communities Act and then we are no longer subject to the rules of the EU. After several hours of debate, the attempt to try and find some other option simply is not there. It is clutching at straws. It does not exist.

Lord Lester of Herne Hill: Could I just clear up one point? Again, I think it is important to be clear about it. Ever since the nineteenth century and Professor Dicey, it has been absolutely clear that under the English doctrine of parliamentary sovereignty, Parliament cannot bind its successors, in the sense—as Dicey pointed out—that even the Act of Union with Scotland could be trumped by a subsequent Dentist’s Act if that Act were to contain something that was clearly inconsistent.

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Therefore, it is clear that under the English doctrine of parliamentary sovereignty, as stated by the courts—because the whole thing depends upon the common law recognition of parliamentary sovereignty by the courts—if a Westminster Parliament were to decide to pass legislation overriding the 1972 Act, it could do so, in so far as English domestic constitutional law was concerned. However, it could not do so in a way that would be legally valid. If we are members of the European Union, to pass legislation that was incompatible with the supreme law of the European Union would mean English courts would be compelled to hold the subsequent statute inconsistent with Community law and to disapply it. This is because English courts are under an obligation in the 1972 Act—and under a directly binding European law—to read and give effect to every British statute in a way that is compatible with binding Community law. With this problem, there is a difference when it is looked at as an isolated English constitutional problem and when it is looked at in terms of our membership of the EU. So long as we are within the European Union, there is no possibility whatever of a subsequent statute breaching Community law, being struck down or disapplied by our own courts and, ultimately, by the Court of Justice. That is the fundamental principle on which our membership of the European Community is based. It is for that reason that amendments of this kind, were they to be carried, would be necessarily held to be invalid.

Lord Justice Laws, a fine judge, floated in one of his judgments in the Court of Appeal—to take Dicey’s example—the supposition that Parliament were to be dotty enough, or the European institutions were dotty enough, to enact legislation requiring that all red-headed people should be boiled alive at birth. The question of parliamentary sovereignty and European Community law, in that kind of extreme hypothetical flat-earth case, could then arise. John Laws was indicating that, in that extreme case, there might be some possibility of litigation on that subject. Frankly, it is not really sensible to spend time on examples of that kind, floated by a distinguished Court of Appeal judge in a hypothetical way.

Lord Howell of Guildford: That is another legal gem to add to our wisdom this evening. I am very grateful to all those who have spoken. I say to the noble Baroness that it is inevitable—I know that your Lordships want to move on as quickly as possible—that there is some overlap between the last debate on the scope, jurisdiction and power of the European Court of Justice—which more or less put down firmly to a subordinate position the supremacy of Parliament in relation to laws already passed—and the question of the supremacy of Parliament now and to what extent it is affected by any future areas of expansion in the scope of the jurisdiction of the European Court of Justice. That is a perfectly legitimate sequential pattern to follow between the two debates and I think that the noble Lord, Lord Neill of Bladen, was right to argue as he did.

I found the last debate and this debate enormously stimulating. Listening to the views of our great legal luminaries and the learned Justice was like dipping into a cool, refreshing stream. They established

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beyond peradventure that, although my noble friend Lord Waddington may not be too happy about it—incidentally, it is a marvellous privilege to follow his rumbustious introduction—short of unlocking and trying to change the 1972 Act, the European Court of Justice is absolutely supreme in areas where it reigns. It is paramount. As Lord Justice Bingham said, it has a panoramic view and, as the noble Lord, Lord Lester, said, it is a supreme constitutional court. There is no doubt about that. Although I know that some of my noble and honourable friends and many people in this country would like it not to be so, it is so. The fact of the matter is that, in the areas where the European Court of Justice prevails and reigns—where its writ runs—it is supreme and parliamentary sovereignty has been subordinated to it.

Also relevant to this debate is the argument that we had earlier about whether that writ can be extended and whether it applies to matters where there appears to be a constitutional conflict between the Court of Justice and what we believe to be our own constitutional rights and values. We look to other countries, as the noble Lord, Lord Neill, rightly did, and see that they have constitutional safeguards in their courts and so on, whereas we have our own safeguards, which are of a different kind. Sometimes we wonder whether, at the parliamentary level, they could be reinforced. Perhaps in the future they can be. However, it is clearly established that the ECJ is supreme where its writ runs.

A perfectly legitimate question remains hanging in the air. Although my noble friend Lord Waddington may not want to be at the centre of the debate, the question is this: if we agree to this Lisbon treaty Bill, to what extent are we extending the areas in which the writ runs and the ECJ’s law is supreme? That is a legitimate area of debate. We have established that the Court of Justice has supreme authority over a large area, but to what extent do we want to extend that? Extend it the Bill does and extend it the treaty does. No one denies the fact that the ECJ acquires, by the collapse of the Third Pillar and the movement of judicial and home affairs and even some aspects of foreign policy into the Union proper, new areas in which to reign. We have an absolutely legitimate query about the extent to which its writ should be extended.

Lord Roper: Can the noble Lord tell us which parts of foreign policy are being moved into the First Pillar?

Lord Howell of Guildford: In an earlier debate, I read out 11 areas where CFSP is affected by veto changes. I will supply those to the noble Lord, but I will not go through them again now, as I know that there is tremendous pressure on time. Perhaps not all these areas will be directly affected, but the influence will certainly be there. The question also arises whether an individual case brought to the European Court of Justice arising from CFSP provisions is justiciable. The Government tried under the convention to have that clarified, but failed to do so. We have discussed that in great detail. I greatly respect the noble Lord, but we have a time constraint and I must push on.

The point of all this is that, if the ECJ is the supreme court—and, indeed, the supreme constitutional court—that knocks a hole into all the arguments

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about the charter and the red lines. None of those things is invulnerable to the supremacy of the European Court of Justice, as been made so beautifully clear by the distinguished legal luminaries in the Committee tonight.

The noble Baroness said that the member states make laws. It is the Council that makes the laws—sometimes unanimously, sometimes without the veto. We are left with the fact that the principle of ECJ supremacy is there; the principle of non-supremacy of the Parliament of this nation is there, but the question is, how far does the ECJ’s writ extend? How far does the principle extend and how far do we want it to extend? Now that the proposition of the Bill is that Pillar 3 be collapsed into the Union, the extension—the purview—of the ECJ would be extended further and the scope would be extended further. Is that what we want? I think not.

When we look into the future people will say that we need to think very hard indeed—I cannot go all the way with my noble friend. Constitutional safeguards similar to those in other countries are needed to ensure that in the future we do not find ourselves dragged further and further into a pattern of law and supremacy for which nobody in this country voted; many people do not want it and it is not healthy for the future of this nation or for Europe.

10.15 pm

Baroness Ashton of Upholland: Let me begin by reiterating what I said to the noble Lord, Lord Neill of Bladen, for whom I have the highest respect. I hope he did not take offence at what I said. With such an interesting debate led by the noble Lord, Lord Owen, on the role of the German constitutional court, which I found so fascinating, I would have loved it to have ranged further and taken in other countries such as Denmark and Poland to which the noble Lord referred. I believe that I referred to France. It was in that spirit that I made my point. It is often frustrating when you wish to be brief from the Front Bench if you can see the opportunity to reiterate much of what you have said before for the benefit of noble Lords who had not participated. I apologise if I caused any offence—it was not meant.

In a way this is a simple proposition which relies on the position that noble Lords take on Europe and the current treaty. Those noble Lords who believe we should not be in Europe at all—and their view is perfectly formed—will take great exception to the suggestion that some court outside the UK should have jurisdiction. Those who wish us to have a kind of halfway house in our relationship with Europe will equally wish to put in caveats to make sure that if there is a bit of law that they do not quite fancy on day two, they can prevent the UK being subject to it.

I go back to what I have said during all our deliberations. When we signed up to this proposition, the European Court of Justice already existed and the primacy of European Union law was a well established principle. Noble Lords may argue that we should not have done it, that we should not do it now and that we should get out of it, which is a completely

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reasonable position. But that is where we are and I will not hide behind dancing on the head of a pin as to what is what.

The Council of Ministers is made up of the member states. It is no good saying that the Council and not the member states makes the law, because the Council is made up of the member states. I have sat on the Council of Justice Ministers. I was there with a badge which said, “UK Government”. I gave my contributions, voted and made my decisions on that basis. I represented this Government, this country and its best interests throughout, as did all of the other colleagues around the table, representing the 27 member states.

I am under no illusion about what I was doing. I was a representative of a member state moving to make better law. I believed that what I was doing was in the best interests of the citizens of this country. I have described civil justice as an important element. If people are to live, work, study, travel, buy or sell in the European Union they need a civil law backdrop that makes sure they are well protected in those transactions, whatever they be. That is fundamental.

In the determination of that civil law, where we have made the law, the European Union Court of Justice interprets for all of us to make sure that each member state does what it says on the tin. Each of them enacts the law as it has been written. I am also under no illusion that that comes from the supremacy of this Parliament in signing up to the 1972 Act and all that went with it.

At the end of the day, this Parliament will decide whether we repeal that Act or stay within the European Union. That is the fundamental point of this amendment and for me a very simple point. While we are part of the European Union, the European Court of Justice has a role and responsibility. The noble Lords, Lord Howell and Lord Hunt of Wirral, have made it perfectly clear that they do not like the Third Pillar collapsing into the First Pillar. They do not seem to recognise the importance and relevance of the opt-ins that have been proposed. We will debate this further and I am sure that the noble Lord, Lord Howell, will be able to put forward his case.

In the context of the negotiations that have gone on around the Lisbon treaty, the UK is in a strong and good position—we want to be part of the European Union. In justice and home affairs, collaboration with our European partners is central to many of the things that we want to achieve—on serious and organised crime, terrorism, asylum and all sorts of issues and matters to do with collaboration and co-operation. We must look at the rub between what we are doing in Europe and in a domestic scenario and ensure that, when we sign up to it and opt in, it is in our best interests. Noble Lords will know that on some occasions on civil justice I opted in and on some occasions I did not. All those decisions were made on the basis of what I believed and my colleagues, more importantly, believed, were in the best interests of the UK. That will continue.

Part of what is factored in will be a recognition that the European Court of Justice will have a say in determining what the rules are and how they are

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applied. That is one of many factors that the UK Government will take into account, but it is just one. It is an important one, however, and part and parcel of what this treaty does. Noble Lords may decide that they do not like this and if they were on this side of the House they would renegotiate. Well, this has been a long negotiation, which started a great many years ago; it is time to move on from institutional reform and get on with the business of what being part of the European Union is for and tackle some of the long-term and difficult objectives that we all have.

In the context of the amendments, the role of Parliament is clear. It has the capacity to repeal the 1972 Act and to make that determination. That in my view is the answer to the amendment and on that basis, the noble Lord should withdraw it.

Lord Waddington: This has been an interesting debate—I do not think that anybody can deny that—and I am very grateful to everybody who has taken part in it. Thank you all very much indeed. I beg leave to withdraw the amendment.

[Amendment No. 124 as an amendedment to Amendment No. 123, not moved)]

Amendment, by leave, withdrawn.

[Amendment No. 123 not moved.]

The Deputy Chairman of Committees (Lord Haskel): I cannot call Amendment No. 124 as it is an amendment to Amendment No. 123.

[Amendment No. 125 not moved.]

The Deputy Chairman of Committees: I cannot call Amendment No. 126 as it is an amendment to Amendment No. 125.

Amendment No. 126 as an amendment to Amendment 125, or moved.)

[Amendment No. 127 not moved.]

Lord Pearson of Rannoch moved Amendment No. 128:

The noble Lord said: We come to three separate amendments, which look further into the future that may arise from the treaty and our membership of the European Union. Amendment No. 128 looks at the EU gendarmerie force. In Amendment No. 129 we look at xenophobia and in Amendment No. 130 we look at the question of the EU having powers over direct taxation.

I fear that some of your Lordships may not be fully au fait with the EU gendarmerie force. What is it? By way of answering that question, I tabled a Written Question on 19 February 2007, in which I asked Her Majesty's Government:

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