European Union (Amendment) Bill

My Lords, I shall speak against Amendments Nos. 27 and 28. There are always questions of the interpretation of statutes at all levels from the international, such as the EU, down to local authority powers. However, we cannot legislate here in the expectation that the European Court of Justice may become entirely irrational or deliberately misinterpret EU legislation or EU treaties. As those who listened to the remarkable speech of the noble and learned Lord, Lord Slynn, on 29 April during the second day of the Committee stage will have appreciated, this really is not the case. The ECJ will not become irrational, nor will it deliberately misinterpret EU legislation in order to extend its own powers. We cannot, and must not, legislate on that basis. Amendment No. 27 seeks to introduce a new clause, subsections (1) and (2) of which simply restate, accurately enough, the relevant provisions of the Lisbon treaty. Subsection (1) relates to the jurisdiction of the European Court of Justice over the common foreign and security policy, the CFSP. Subsection (2) relates to the jurisdiction of the EDJ in relation to the Charter of Fundamental Rights. It seems that these provisions are intended to apply only if a case has been decided by the European Court of Justice to the disapproval of those in this country who take a different view. The amendment has technical defects. First, it is not clear whether the jurisdiction under the new clause can be exercised only if an issue has been raised in a hearing before the European Court of Justice about the extent of its powers, or whether it can be raised under subsection (3), even if no jurisdictional issue was raised before and decided by the ECJ. Secondly, it is not clear who can raise the issue in the United Kingdom or how they can raise it. However, even without these defects, which no doubt would be capable of being cured, the amendment is much more deeply and fundamentally unsatisfactory. It is a basic rule of a legal system that a court decides on the extent of its own jurisdiction in accordance with the rules and laid down by statute and precedent. That decision is binding unless it is reversed on appeal by a higher court. It is plain that no court in the United Kingdom is a higher court than the ECJ. On ECJ matters, it is obviously the other way round. That is why, for example, if a serious question of European law arises in a case before the House of Lords or a lower court in the United Kingdom, that question must be referred to the ECJ for decision. That decision binds all the courts in this country, including the House of Lords, or the Supreme Court, as it will soon become. The reasons for this are obvious. Only the ECJ can give a decision which is binding on all the member states. Any decision by the House of Lords will be binding only in this country. A similar situation applies as regards any decision by the courts of any country from Cyprus to Portugal. An impossible situation would arise if 27 national supreme courts could give a different interpretation to EU treaties. That is plainly obvious as regards decisions on the CFSP covered by subsection (1) of the amendment. We cannot have different meanings attributed to the CFSP by different states. At first sight this may be less obvious in relation to subsection (2) of the amendment, which repeats Article 1, paragraph 1, of the protocol, which applies only to the United Kingdom and Poland. However, the question here is: what does Article 1, paragraph 1, mean? It is a negative provision which states that the powers of the ECJ are not to be extended. Therefore, we have to start with a decision by the ECJ that has not extended its powers, either actually or by implication, and that the decision is being challenged in proceedings in the United Kingdom. If the United Kingdom court has power to decide that the ECJ has exceeded its powers, and that the decision of the ECJ must be ignored, one is allowing an inferior court to override a superior court. That is not relevant just to what happens in the United Kingdom. A decision on what are the existing powers of the ECJ taken by the ECJ itself will affect all EU member states. The preamble to the charter says that it reaffirms rights; it does not say, and we all agreed on this, that it extends them. Any decision by the United Kingdom court that the ECJ had extended its powers would involve the interpretation of what those powers are not only in relation to the United Kingdom but in relation to all states, subject to the charter. That must be a decision for the ECJ and not for the United Kingdom court because if it is the other way around, we end up in the same position, that the supreme court in each independent state within the EU can decide the existing powers of the ECJ. The motive behind this amendment seems to be the belief that the ECJ will consciously use its powers to reduce the powers of the UK courts and to increase those of the ECJ by means of decisions which are plainly inconsistent with its powers under the EU treaties. That should—although I doubt if it will—put to rest what I regard as the essentially paranoid views of some opponents of the Bill about the way in which the ECJ works. It is not an organisation which will deliberately set out to impose its own views on the EU as a whole. It can, and surely will, as it has in the past, operate on the basis of a proper, serious and thought-out view, assisted by the Advocate General who is a figure of considerable power, about the questions that come before it. I now turn to Amendment No. 28. This amendment is considerably less harmful—