European Union (Amendment) Bill

When I said it might not do it very often, I was referring to the future. It might not do it; it might not do it very often; and it has not done it; but that does not mean that it cannot do it. We just have to be clear what we are describing, but it has the power and the capacity to do that. Unanimity is argued for by most noble Lords opposite as being of great import, so I do not see that as a problem; I see that as a positive, if what the noble Lord, Lord Pearson of Rannoch, usually says about unanimity is right. The European Court of Justice interprets the law. If the Council, in its wisdom, decided that it did not like that interpretation, it has the power and the capacity to change it. That principle is important. It is the same with this Parliament and national courts. When we joined the European Union, the principle of primacy was already there. It is not new; it has not been invented by this treaty or by Maastricht. It is a fundamental part of having a European Union, where you are trying to apply rules that you have made across the Union. That is very important. If you make rules, you need a mechanism to enforce them, but it is not open to a member state to decide that it does not fancy a certain rule one day and, therefore, will ignore it and change it. There is no point in being part of a Union on that basis. The Lords Constitution Committee report is often quoted and I shall quote the implications that it has described on this. It states: "““We conclude that the Lisbon Treaty would make no alteration to the current relationship between the principles of primacy of European Union law and parliamentary sovereignty. The introduction of a provision explicitly confirming Member States’ right to withdraw from the European Union underlines the point that the United Kingdom only remains bound by European Union law as long as Parliament chooses to remain in the Union””." So the ultimate ability to leave the European Union is there. On a previous day in Committee we debated the withdrawal article in the treaty. If noble Lords do not wish to be bound by European law, that is the way to address the matter. As I have said, it is in our interests and it has been a fundamental principle. In 1972, the then Solicitor–General, now the noble and learned Lord, Lord Howe—I hope he will not mind me repeating his words—said: "““It would make a nonsense of the necessity for Community law to have the same effect in every member State if the United Kingdom, any more than any other member State, could choose by national law to override what it did not like. The principle of Community law having precedence throughout the Community is one that operates for the mutual benefit of all member States””.—[Official Report, Commons, 13/6/72; col. 1317.]" That is the principle. The doctrine of parliamentary sovereignty remains a cornerstone of our constitutional arrangements and is unaffected by ratification of the Lisbon treaty. That, in a nutshell, sets out in our involvement in the European Union. Let me try to deal with some of the issues that have been raised by noble Lords. In moving the amendment, the noble Lord, Lord Blackwell, raised two examples. The first was whether, if we did not opt in, the UK courts could be influenced by EU law. If we do not opt into a measure in the area of justice and home affairs, it will not form part of our law and, therefore, our courts would not apply it. It is as simple as that. Noble Lords also asked about the European Court of Justice and the charter. The noble Lord, Lord Lamont, referred to what the noble Lord, Lord Kingsland, had said and much has been made of what the noble and learned Lord, Lord Slynn, and the noble Lord, Lord Hunt of Wirral, raised. I shall try to be as clear and succinct as I can on that. The charter sets out existing rights. In our previous discussions, we described the backdrop to the charter. The different articles in the charter come from different places: the European Court of Human Rights, EU law or principles in the operation of EU law, and so forth. I shall not go back through all that. The European Court of Justice can apply the charter only to the same extent that it applies the existing rights. That is a critical point. As the UK protocol makes clear, no court—European Court of Justice or other—can use the charter to extend its jurisdiction to attack UK law. I think that is clear and I hope that noble Lords will reflect on that. The noble Lord, Lord Owen, made a very interesting contribution. I am glad to hear he has regained his voice. In speaking to Amendment No. 127, he spoke much about other jurisdictions and particularly about the German constitutional court. I hope the noble Lord will not be surprised that I, too, looked at the German constitutional court and at the French courts—the Cour de Cassation and the Conseil d’État, which are the two courts that have had an interest in EU legislation as well. Let me back up a lot of what has been said. I will not enter the lawyers’ debate that surrounded that, for obvious reasons—I am not a lawyer and I would not pretend to intervene in that way. I recognise that the German Constitutional Court plays a very particular role. What it does is test legislation and government action against the national written constitution. It therefore has a specific focus. That focus is on the national constitution. This is an important backdrop to understanding what the court does. The Court considers that in principle it can decide on the compatibility of Community law with the German constitution but it has never challenged European Community law. Let me give two examples quoted by noble Lords. The court questioned the compatibility of EC law with human rights. The European Court of Justice confirmed that it applied human rights as part of EC law. The German court accepted that, as long as EC law was compatible with its own constitutional safeguards, it would respect the primacy of EC law. That case—the Solange case—was a case that was referred to by a noble Lord on the Liberal Democrat Benches. The other example was the question that the noble Lord, Lord Owen, referred to—the Brunner case. The court made clear it could review the compatibility of EU treaties with the German constitution but found no incompatibility. There is a case before the German Constitutional Court at present. There is nothing new in that. These cases have never resulted in a member state being prevented from ratifying a treaty but I am not going to comment on it because it is before the court and I am advised that I should therefore not make any further comment on that. Tomorrow I will be going to Peru with Chancellor Merkel. While I am there I will approach her officials to see if I can get any more information about the German Constitutional Court and the current activities. If I do, I will either write to noble Lords or make sure that we have an opportunity to come back to this. The noble Lord, Lord Owen, talked about the Luxembourg compromise. As far as I am concerned, that is well outside the treaty. It is a political determination. It involves, as I understand it—I am sure that noble Lords will leap up to correct me if I am wrong—the situation where a member state feels that there is something so fundamental going on that they ask for a pause or stay in the discussions in order to examine that properly. It is a political commitment—it has no legal status, as I understand it. As far as we are concerned, it still exists. It has not been used, as far as I know, for a while—certainly not by us—but it exists because it is about the politics of nation states working together. The noble Lord, Lord Owen, asked about the Dutch position. He is much exercised that I had not yet made contact with the Dutch in order to discuss the double-hatting of the High Representative or the Commission President. I have not done that—like the noble Lord I have huge respect for the Dutch courts and for courts across the European Union—because it is the responsibility of the UK Government, working with its own legal advice, to look at the treaty and to interpret what we believe to be the correct position. When I was in Brussels recently, I discussed this position with officials in order to make sure that the interpretation was right. Actually it is spelled out in the treaty. Noble Lords can go to Article 17 of the European Union Treaty and find references to Article 245 on the functioning of the European Union. To put it in a nutshell, if you are President of the Commission or if you are the High Representative and therefore a Vice-President of the Commission, you are part of the Commission. Article 245 states: "““The members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not.””" If that were amended, the treaty would need to be amended so it is impossible for the President of the Commission and the High Representative, who is Vice-President of the Commission, and the Council President to double-hat because the two people in the Commission are not allowed to hold any other role. In order to double-hat you need two out of three to be involved but two out of the three cannot do it. I have not used government resources and therefore taxpayers’ money to talk to the Dutch about this because in my view the position is crystal clear. As I said, we are clear about the primacy of European Union law and we are very clear on the role of Parliament. We believe that this position is exactly the same as it has been before the treaty. It is an important position. If this Parliament decides it does not wish to be part of the European Union that is within its gift. While it is part of the European Union, however, laws that we have participated in making fall to the European Court of Justice to interpret. The noble Lord, Lord Hunt, talked about Amendment No. 159. It was interesting that the noble Lord made it clear that he is unhappy about pillar collapse. The preamble to this was his worry about what is now part of the JHA opt-in; essentially, that involves pillar collapse from pillar 3 to pillar 1. I would be very interested to know what the noble Lord would wish to do on behalf of his party about trying to change that if this treaty were not to be ratified. Would he want to keep the Third Pillar as it currently is? I will wait for another occasion to discuss this. The noble Lord is quite right to say that this is a conclusion in relation to the report of the Constitution Committee. We are very interested in this. All I can say at present—and I hope the noble Lord will take heart with this—is that consultations with government departments are nearing their conclusion. I hope to be able to respond positively in due course but I am not able to do so today, as I had hoped. On that basis, I hope that the noble Lord will withdraw the amendment.