European Union (Amendment) Bill

It is a difficult judgement as to whether one should intervene in someone else’s amendment on which a lot of argument was going on or whether one should keep one’s powder and shot for an amendment for which I have actually put my name to. I naturally thought should I get up and interrupt and in the end I decided not to. I may have got that wrong. Essentially I think it is important we should not be too insular in these matters and that we should be aware of how other countries deal with these questions and in particular their stress on the need for the court to remain strictly within its jurisdiction. In view of the lateness of the hour and what the noble Lord has said, I suppose I should spare you what the position is in Poland. Essentially the Poles have said that the national law is supreme, that there is a limitation on the powers of the EU—exactly the same point as the Germans—and that they reserve the right to consider the clash that might arise if some provision in the constitution was in conflict with Community law or a Community decision. They look at the possibilities that might be persuading the EU to alter their ruling, amending their own constitution or leaving the EU. None of this is challenging the basic position, which we were discussing before dinner, of the sovereignty of the EU court in so far as it decides things within its remit. If we look at the position in English law, the general conventional wisdom is that the 1972 Act could be repealed by a straightforward Act saying that that was the will of Parliament. It is a little less clear what the position would be in relation to some particular doctrine or part of European law. Could we single that out and do so in clear language that was not to form part of English law? Lord Denning looked at that in the passage cited by Lord Waddington, in which he discussed what would happen if the time comes when Parliament passes an Act repudiating the treaty or any provision in it. He went on: "““I should have thought it would be the duty of Parliament to give effect to it.””" Lord Justice Laws in the Thorburn case, which was also mentioned by the noble Lord, Lord Waddington, said that, "““In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of ""the 1972 Act were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case””." He does not say what the answer would be if that situation did arise and he is not looking at the issue which I flagged up for your Lordships; that is, what happens if the EU measure in question is outside the four corners of the treaty or that the ECJ gives a judgement in an area which is not committed to? We have had a lot of discussion about the Lisbon treaty. I have referred to the foreign policy borderline—details are in paragraph 4.176 of the committee’s impact report. Other problems are referred to in part 7 in paragraph 7.50, where there is a reference to Article 39 and the fact that the ECJ has no jurisdiction whatever in that area. I am putting into your Lordships’ minds the thought that we could get situations where it was unclear and there could be a debate whether a law, regulation or directive made by one of the organs of the EU, or whether a judgment of the ECJ, was within the limits of its jurisdiction. In that case, I think that it would be open to challenge in this Parliament and an Act could be passed expressly disclaiming part of the new instrument or the decision by the court. The nuclear option, of course, is to give notice, as has been suggested, under the provisions in the Act. I support the amendment on the basis that it would be important to the public to know that the Lisbon treaty had been incorporated; otherwise, they will know nothing. The earlier debate this evening has shown the level of knowledge about EU law. Almost nothing is known by the general public about what is being done in their name, but there would be some satisfaction in having a clause which said that Parliament retained its full sovereignty to repeal the Act.