European Union (Amendment) Bill

I have now insulted the noble Baroness. I am sorry. I will keep going. We all greatly admire the noble Baroness and the courtesy that she shows to all speakers. I will get on. This Lisbon treaty is a pretty tough area for amateurs to deal with. I should state the extent of my qualifications and then tell noble Lords about my disqualification. I was recently a member of this House’s European Select Committee serving under the noble Lord, Lord Grenfell, and I was on Sub-Committee E. I was one of those who considered the proposed constitutional treaty, and we spent a lot of time on that. But I was not a member of any committee that considered the current Bill. In Sub-Committee E we had a succession of extremely able Law Lords. I hope that it will not be a feature of the move across the road to the Supreme Court that we lose for ever that wisdom. If so, that is a lamentable consequence. I will not mention any names but they were extraordinarily good. I add my congratulations to the noble Lord, Lord Grenfell, and his team on the job that they did in producing this report, which has flagged up a great many concerns and gives a tremendously good exposition on what is contained in the Lisbon treaty. I was also struck by the numerous occasions when the committee said, quite accurately and sensibly, that we would have to wait to see how it played out and that it was not possible to forecast how it would go. I should mention as a matter of candour to this Committee that I wrote a piece once entitled ““A Case Study in Judicial Activism””, which referred to the European Court of Justice. The House of Lords Select Committee at that time in 1995 was good enough to put some questions to me about it and then wrote a report. I interpose to say that I will hand my notes to the Hansard team. I have references for everything that I am saying but I will not waste time giving the references now. The committee considering my evidence, with disciplined brevity, rejected my criticisms of the court's activities without wasting the reader's time by refuting the details of my argument, at paragraph 256. Anyway, I somehow survived that and two years later, I became a Member of this House and in due course was put on the committees that I mentioned. I have no intention of revisiting any of that ground and the controversy concerning the modus operandi of the European Court of Justice, but for practical purposes it is the interpreter of the treaty. I am sorry that the Bishops’ Benches are empty tonight because I wanted to remind them of a tremendous expression by one of their predecessors, Bishop Benjamin Hoadly, an early 18th-century divine, who held four bishoprics, starting at Bangor and going on to Hereford, Salisbury and finally Winchester. Preaching to the King in 1717, he said: "““Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them””." He might have been writing about the European Court of Justice as its word is absolute, or is it? I would like to refer to the position in three member states—we had a little about this before, but I did not intervene as I did not want to get involved in that controversy or elongate it any further. However, I would like to deal with the position of Germany, Denmark, and, more recently, Poland, as it is instructive and relevant to what may conceivably happen in this country. It is impossible to go into the long story of Germany’s position, so I will not attempt it. However, it is important to mention that its constitution was amended in 1992 to make better provision for its EU membership. Specifically, it amended Article 23(1) of the German constitution to permit the transfer of sovereign rights to the Union, but subject to certain basic principles of the constitution, including fundamental rights. That has always been the German constitutional court’s position—that it safeguards the fundamental rights guaranteed by its constitution. A case that is generally cited, was mentioned earlier, and is relevant here is the Brunner decision of the federal constitutional court in Germany, decided in October 1993. On a question of trespassing outside the jurisdiction given to the court, the court said, "““if European institutions or agencies were to treat or develop the Union Treaty in a way that was no longer covered by the Treaty in the form that is the basis for the Act of Accession, the resultant legislative instruments would not be legally binding within the sphere of German sovereignty. The German state organs would be prevented for constitutional reasons from applying them in Germany. Accordingly the Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them””." That is an interesting statement on a jurisdiction. The court will watch to see whether the activities of the ECJ, or indeed of any other institution within the Community, go beyond the remit of the treaties, because that is the basis on which it acceded. I believe that is the current position in Germany law. In Denmark, there was a case of Carlsen against the then Prime Minister, Mr Rasmussen, which was decided in 1999 by its supreme court. It, too, has a written constitution, section 20 of which provides that powers may be delegated to an authority, "““to an extent specified by statute””." In the context of the Maastricht treaty, the claimants argued that the powers delegated to the Community under the treaty on European Union were too ill defined to satisfy the statute’s—the local constitution’s—requirements. They made two points, the first of which was that Article 308—which we all remember— "““of the EC Treaty gave the Council an open-ended power to legislate””." Secondly, it said, "““that the ECJ indulged in what the claimants called ‘law-making activities’””." On the criticism of the court, the Danish supreme court said: "““The fact that the ECJ in its interpretation of the Treaty also attaches importance to factors of interpretation other than the wording of the provisions, including the objectives of the Treaty, ""is not a violation of the assumptions on which the Act of Accession was based, nor is it in itself incompatible with the demand for specification in Section 20(1) of the Constitution. The same applies to the law-making activities of the ECJ within the scope of the Treaty””." The words, "““within the scope of the Treaty””," are exactly the German point. So long as they are giving a judgment within the four corners of the treaty, we recognise that and that is it. On the wider question of what the position would be if it were later to be alleged in Denmark that an EC institution had exceeded the powers conferred on it by the treaties, the Danish supreme court said that, first, there would have to be a reference to the ECJ to rule on whether it was compatible or not with the constitution. Then it said: "““Danish courts of law can generally base their decision on decisions by the Court of Justice on such questions being within the limits of the surrender of sovereignty””." However, the courts of law in Denmark cannot be deprived of their right to try questions of whether an EC act of law exceeds the limits or the surrender of sovereignty made by the Act of Accession. The court continued: "““Therefore Danish courts must rule that an E.C. act is inapplicable in Denmark if the extraordinary situation should arise that with the required certainty it can be established that an E.C. act which has been upheld by the European Court of Justice is based on an application of the Treaty which lies beyond the surrender of sovereignty according to the Act of Accession. Similar interpretations apply with regard to Community law rules and legal principles which are based on the practice of the European Court of Justice””."