European Union (Amendment) Bill

It would be presumptuous of me to speak at any length after the noble and learned Lord, Lord Slynn of Hadley, has spoken. I remember with great affection that it is half a century since, sitting on the bed of Queen Victoria at Trinity College, Cambridge, he attempted to teach me the history of the law of assumpsit. For the past 50 years, ever since being his pupil, I have sat at his feet. There is no greater living authority than the noble and learned Lord, Lord Slynn, when it comes to the relationship between European Union law and this country’s domestic law. I shall therefore be extremely brief and shall not repeat anything he said. Ever since 1972, when we joined the Common Market, it has been quite clear in the European Communities Act, which was crafted principally by the noble and learned Lord, Lord Howe of Aberavon, that Section 2 requires all three branches of government in this country, where European law reigns supreme, to give full effect to that law whether passing laws, interpreting laws or giving effect to those laws. It was clear at the time, it was made clear in a case I once argued before Lord Denning called McCarthy’s v Smith, it was later made absolutely clear in the Factortame case by the Law Lords and made clearer yet again in the case involving the Equal Opportunities Commission and the Secretary of State for Employment. In all those cases, a provision in an Act of Parliament was in conflict with the paramount law of the European Community. For example, in the Factortame case, as everyone knows, a provision in the Merchant Shipping Act discriminated on grounds of nationality in the area of fisheries. That case went to Luxembourg and came back again—it went several times—but it was made quite clear by Lord Bridge that the Merchant Shipping Act’s discriminatory provisions had to be displaced in favour of the binding European rule of equal treatment without nationality discrimination. To take quickly another example, in the EOC case, the Employment Protection (Consolidation) Act 1978 stated that people had to work so many hours a week in order to get employment benefits. That was in conflict with the European equality directive which requires equality for women without discrimination as it hit disproportionately at women who could not work full time, and the Law Lords again decided that the domestic provision had to be read and given effect so as to remove the sex discrimination against women. There is no doubt whatever about the relationship. The sovereign Parliament can decide to repeal the 1972 Act, but could do so only if we were to leave the European Union. Unless it did so, the position is as the noble and learned Lord, Lord Slynn, has stated, far more eloquently than I can. That is the first main point: parliamentary supremacy gives way, because we exercised parliamentary sovereignty in 1972, to the paramount law of the European Union, only where that paramount law reigns. As far as the Charter of Fundamental Rights is concerned, the report of the Select Committee of this House, to which I was privileged to contribute, made it clear beyond argument, article by article, that the charter posed no threat whatever to our internal legal system. No one has pointed to any provision where that could arise. It does not give rise to a problem. Finally, I will speak briefly to Amendment No. 127 in the name of the noble Lord, Lord Owen. That will save my doing so again later. I will explain briefly why—with great respect—it is, for similar reasons, misconceived. Amendment No. 127 seeks to allow anyone living in the United Kingdom to apply to the High Court for a declaration on any question of interpretation of the Lisbon treaty, even though there is no need to determine the rights or liabilities of the applicant. On that first point, that is entirely a matter for our own courts at present. I have no doubt that, in a proper case, they would think it right to grant a declaration on matters of interpretation. The second point is that a Minister or others can apply. That is otiose— unnecessary—because they could already do so under our well-known principles of administrative law. The third point, which is the nub of the amendment, is the suggestion that an interpretation of the treaty, made on an application brought under this section, must be consistent with the interpretation given to the treaty by the UK Parliament at the time the Act was passed. That is unlawful under the law of the European Union because it would seek to make this Parliament master of the interpretation to be given of the treaty, rather than the European Court of Justice, which is the final court on questions of that kind. In other words, it would be another way of seeking to invoke parliamentary sovereignty in a way that was unlawful under European law. Sub-paragraphs (4), (5) and (6), which I will not bore the Chamber by reading, are all well-recognised in existing administrative law and procedure, and would be unnecessary. The vice of Amendment No. 127, like that of the amendment we are now concentrating on, is that it seeks to elevate Parliament into a position contrary to the European Communities Act 1972, and contrary to the supreme law of the European Union.