European Union Bill

Lord Armstrong of Ilminster Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, I intervene as one who is not learned in the law, unlike most previous speakers. I put down an amendment that Clause 18 should not stand part of the Bill. The noble and learned Lord, Lord Howe, referred to that and also put his name to the amendment.

I listened to those who are learned in the law dancing on the point of a legal pin. I shall take the matter away and look at what they said, because it seems to me—as it seemed when I tabled the amendment—that the clause is, as has been said, not just unnecessarily vague but unnecessary. As has also been said, it is declaratory in effect. However, the legal position is perfectly clear from Section 2 of the European Communities Act 1972. Like the noble and learned Lord, Lord Howe, I remember vividly the discussions that led up to that section. It has been buttressed by opinions in the Court of Appeal, if not in the Supreme Court—or House of Lords as it was—and I have not been convinced that we need Clause 18 in the Bill. I share the views of the noble Lord, Lord Kerr of Kinlochard, about the undesirability of declaratory provisions that do not change anything. Therefore, I have not yet been convinced that the law is uncertain or not absolutely clear already in this matter and needs to be reinforced or redeclared by the clause.

[Lord Howe of Aberavon]

Perhaps the noble Lord will allow me to intervene. I ought to have been more courteous in my portrayal of our partnership in a form that he would prefer to support. The reason that I was impelled in the Scottish direction was in order to underline the importance of the 1972 Act. The noble Lord, Lord Armstrong, is right to argue that we do not need the clause. However, it can do no harm to have the overriding importance of the 1972 Act being manifest, and to remove the ambiguity of the original Clause 18 and move beyond the removal of the offending clause to underline the proposition and lay it further beyond doubt. That is why I am inclined to prefer to move in that direction. However, I do so with apologies to my erstwhile partner.

[Lord Armstrong of Ilminster]

My Lords, I am grateful to the noble and learned Lord, Lord Howe, for saying that. I do not feel any differently about underlining something from how I do about declaring something that is already in existence, is supported by the judiciary and is not in question. Of course, I shall read the interventions of noble Lords who have spoken previously on these matters, but I remain to be convinced that we need this clause in the Bill.

[Baroness Falkner of Margravine]

My Lords, I will briefly address three issues. The first is whether we need this clause in the Bill. I completely agree with the noble Lords, Lord Armstrong and Lord Kerr, and with my noble and learned friend Lord Howe that the clause is probably redundant, not only because it is declaratory but because it does do what it sets out to do. I say to the noble Lord, Lord Willoughby de Broke, that if one reads carefully the House of Commons European Scrutiny Committee report, one sees very clearly that the committee does not think much of the clause. Paragraphs 82 to 86 of the report state:

“Clause 18 does not address the competing primacies of EU and national law … evidence suggests that clause 18 is not needed … if the legislative supremacy of Parliament is under threat, it is from judicial opinions in other areas of law … Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it is included in the Bill is, in our view, exaggerated”.

That is the view of the European Scrutiny Committee.

In case the Minister convinces the House that the clause has merits that are not instantly evident to most of us, I will say a word or two about Amendment 59. We have spent hours and days in Committee trying to gain clarity where there was ambiguity in the Bill, and a level of certainty where there was obfuscation. Therefore, it is odd to see that Clause 18 is as ambiguous as it is. I have a great deal of sympathy with my noble and learned friend, Lord Mackay of Clashfern, and my noble friend Lord Lester of Herne Hill, whose amendment seeks to replace an Act of Parliament with the European Communities Act 1972. This would be a welcome move.

As regards Amendment 57, I suggest that the noble Lord, Lord Hannay of Chiswick, looks at paragraph 61 of the House of Commons European Scrutiny Committee's report, in which Professor Tomkins says that it does not deal with the primacy issue, but only with the source issue, which is not really a question of sovereignty. On careful reading, the report leaves one almost as confused as when one started, because it seems to say everything to everybody, and seems to want to placate several constituencies in one go. It is also clear when one reads the evidence in the Notes that different legal experts offered different ideological interpretations of the Bill. Therefore, I would not die in the last ditch to defend the report. However, it is interesting that it is fairly clear that the sovereignty issue is not addressed by the Bill.

In conclusion, I find it rather peculiar that paragraph 115 of the Explanatory Notes states:

“This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts”.

This is slightly curious. Perhaps the Minister will give us clarification.