European Union (Amendment) Bill

If the noble Lord is saying that when the justices make the case they do not bear in mind the argumentation that goes on about what is said in both Houses of Parliament, then I am surprised. I do not deny that it is their judgment that makes the law of the land; the words and the interpretation of those words lies in the courts of law of this country. But in regard to the framing of those words and the way that they are put—as the noble Lord knows perfectly well because he has been on the other side in government—parliamentary draftsmen take Ministers through with extreme care what the words are meant to mean. The interpretation and explanation of the words by Ministers is taken very seriously because it is thought to have implications for how a future judge and court will interpret those words. But if what the noble Lord is saying is right, then we might as well give up having debates, go home and let the judges and the lawyers decide everything. Fortunately, we have a system in this country where there is an input from the normal, average person about what words mean. This is one reason why I have always thought that you could go to a court and argue that the words mean a certain thing. But, of course, the judges will decide. They will not be bound by Parliament—nor should they be—but, equally, I do not think that they ignore Parliament. This is obviously touching some sensitive nerves but I still come back to the fact that legislation has been passed as treaty amendments and interpreted by the European Court of Justice in a way that we did not consider the words meant at the time. I considered whether or not to try to create a constitutional court and I came out against it. We now have the Supreme Court—in name but with hardly any considerable change in judgment—and, having taken on this well-respected name with all the authority it incurs, it would not be unreasonable for the British Parliament to consider, in the light of experience since 1972, whether we need some further safeguarding of the terms of the wording of treaty amendments. If the Supreme Court made a judgment that the interpretation of the European Court of Justice did not correspond with the intention of and the explanation to the British Parliament, there would be a clash. Such a situation would be extremely helpful. I return to the question of the double heading of the President of the Commission and the President of the European Council, an issue that I have raised before in this House and which I still see as a potentially great danger. I wrote to the noble Baroness explaining why the Dutch Government, in March 2004, took the view on the European constitution—this is my own translation—that: "““The Government also shares the opinion [of parliamentary factions] that the possibility should be kept that in future the President of the Commission can also be the President of the European Council””." They went on to say: "““The texts before us leave this possibility open””." In addition, the Dutch Government’s internal legal advice was that Article 21(3) of the then European constitution stipulated that, "““The President of the European Council may not hold a national mandate””," and should be read explicitly as only excluding national mandates and not other—read European—mandates. Since then there have been further wording changes introduced, predominantly by the British Government with, I think, the understanding of the Dutch Government. I asked the noble Baroness to see whether she could, through bilateral talks with the Dutch Government, reach some understanding and a common interpretation of this. We have good and friendly relations with the Dutch Government. They are now much more attuned to our view about the nature of the European Union—they are not the federalists they once were—and it is not unreasonable that we should get some explanation from the British Government of the Dutch Government’s view. In international law the Dutch Government is extremely well respected, and I would find it much easier to live with the present treaty if I thought that the Dutch Government shared the British Government’s interpretation of double heading. But double heading is another example of where, despite constant promises by the noble Baroness—I know she has gone into this very carefully—and genuine assurances by the British Government that it is impossible, there are still at this moment campaigners in Brussels who are arguing that this is the next step, and they believe that it is possible to do it within the treaty. That is a fact. You can go on to the blogs of the people who believe it and read the speeches made about it by serious European politicians. Every statement that the noble Baroness makes is helpful to this House, but it is not sufficient. We could still have an interpretation put on the wording in the treaty which is diametrically opposed to the assurances that we have received from the present Government. It may not come in 10 years’ time or in 20 years’ time, but this challenge will come. For that reason and for many others, one of the ways to deal with it would be through the amendment that I have tabled.