European Union (Amendment) Bill

The debate so far has taken a direction which I had not anticipated. Until the noble Lord, Lord Goodhart, spoke it had concentrated mainly on the ability of the European Court of Justice to decide exactly what is and is not law. The noble Lord, Lord Goodhart, at least mentioned the charter—which it seems we are not going to discuss—the details of which are very important. The last time we discussed them was when we debated the treaty of Nice, although that treaty did not incorporate them in a judicial sense. The charter deserves a very close examination because some of its effects on British law will be very severe indeed. I will not go into all of them because we are clearly spending a great deal of time on this amendment. The noble Lord, Lord Bach, wants us to get on so I will try to do that. The noble Lord, Lord Campbell of Alloway, mentioned Lord Denning. As the debate has concentrated on the powers of the ECJ, it is worth referring to a speech that Lord Denning made in this House on 31 July 1986. I shall read this summary of that speech: "““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. As we proceed with the completion of the internal market the powers and decisions of this supranational court will impinge more and more on every aspect of our national life, social, legal, political, business, labour, economic and, indeed, on our relations with countries in the rest of the world outside the EEC. Business and individuals will find themselves, unwittingly, breaking laws of which they have no knowledge and which have been made, not by their own Parliament in public, but by the institutions of the EEC meeting in private, probably after wheeling and dealing in secret””." Those are not my words. I am not clever enough to deliver such a judgment as that, made by one of our most famous Law Lords. However, if we take his view as correct, as I am sure we will, he really put the matter in its true perspective. The European Court will eventually decide whether the Charter of Fundamental Rights will be justiciable in regard to this country. The noble Lord, Lord Pearson, referred to a number of cases where the European Court has decided matters in spite of what Parliament felt about it and had decided. He mentioned in particular the Factortame case, which really established the superiority of the European Court because it forced a British Government to reverse an Act of Parliament which it had made to protect the livelihoods of Scottish fishermen. It reversed the decision of Parliament and of the British Government to protect their own citizens or a section of their citizenship. The result was that Spanish fishermen were allowed open access to Scottish and of course British waters and the state had to pay, I believe, between £200 million and £300 million in compensation. That confirms where the power really lies. Before I sit down, perhaps I may read one or two quotations, if I can find them. The EU Commissioner Margot Wallström said: "““The Charter will be binding for the European institutions, and also for Member States when they implement EU law, even if this will not apply to all of them””." By the Government’s own admission, 70 per cent of all legislation comes from Europe. Whatever they say, the charter will apply in a good many instances. Then there is the former EU justice Commissioner, Antonio Vittorino, who questioned the legal basis for the British opt-out from the Charter of Fundamental Rights and said that it would not work. I ask the Minister: what is the view of the European Commission? Has its view been sought? If not, why not, and will it be sought now? The Commission is an important part of this business and it would be useful to know whether it agrees that our opt-out is watertight. I very much doubt that it will. With that, I support the amendment and those that go with it.