European Union (Amendment) Bill

I should tell the Committee about a case I was involved in as lately as last Friday in the Court of Appeal. It concerned the prosecution rights of appeal, a matter that we discussed at length in Committee, on Report and at Third Reading in the Criminal Justice Bill 2003. My opponent for the prosecution had raised the issue that the clear words of the statute did not represent the intention of Parliament and I quoted to the judge the words of the Attorney-General, the noble and learned Lord, Lord Goldsmith, which made absolutely clear what the Government had in mind in passing that legislation. The Lord Justice presiding said to me that that was very interesting, but that there was no obvious difficulty in interpreting the clear words of the statute, that various things had been said in Parliament on all sides and that if the courts started to take notice of what was said in Parliament in that sense, they would be completely confused. I was surprised, because I thought that, on the Pepper v Hart principle, the words of the Attorney-General would be accepted as definitive. But there was no difficulty in interpreting the statute, notwithstanding the arguments of my opponent, who sought to put a gloss on it that the Court of Appeal did not accept. My noble friend who explained this was absolutely right that it is with the words of the statute that we are concerned. As early as 1964, long before we entered the European Union, the European Court ruled in the case of Costa that, "““in contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal system of the member States and which their courts are bound to apply””." That applies to Germany as to any other country. The court continued: "““The transfer by the States from their domestic legal systems to the Community legal systems of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail””." They were clear statements. With those in mind, we entered into the 1972 agreement and passed the European Communities Act 1972, which contained precisely that principle. Shortly afterwards, in 1974, Lord Denning, in the case of Bulmer v Bollinger, said about it: "““When we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law ... The governing provision is section 2(1) of the European Communities Act 1972 ... The statute is expressed in forthright terms which are absolute and all embracing””." That was a statement of principle two years after the European Communities Act. The rationale for giving primacy to European law, as decided by the European Court of Justice, was expressed by the noble and learned Lord, Lord Bingham, in his High Court judge days in 1983, in the case of Commissioners of Customs and Excise v Samex. He said that, "““the Court has a panoramic view of the Community and its institutions, a detailed knowledge of the treaties and of much subordinate legislation made under them, and an intimate familiarity with the functioning of the Community market which no national judge denied the collective experience of the [European] Court of Justice could hope to achieve ... The interpretation of Community instruments involves very often not the process familiar to common lawyers of laboriously extracting the meaning from words used, but the more creative process of supplying flesh to a spare and loosely constructed skeleton. The choice between alternative submissions may turn not on purely legal considerations, but on a broader view of what the orderly development of the Community requires. These are matters which the [European] Court of Justice is very much better placed to assess and determine than a national court””." Those are the views of Lord Denning and the noble and learned Lord, Lord Bingham. They are clear; the legislation is clear. There is no doubt about what it said in 1972, and it incorporated principles that had been expressed by the European Court years earlier in 1964. I am amazed that in 2008 we are still questioning the primacy of the European Court of Justice.