European Union Referendum (Date of Referendum etc.) Regulations 2016

Debate between Lord Howard of Lympne and Lord Faulks

Wednesday 2nd March 2016 Lords Chamber

[Lord Faulks]

In an interview which I saw, the Lord Chancellor suggested that the European Court of Justice—or the CJEU, as it now prefers to be called—is the supreme court in Europe and is above all European institutions in interpreting the law. That is entirely a correct statement of the position. If he suggested—and I am not sure whether he did or did not because it seemed to me that he and the Prime Minister might have been talking about rather different things—that the treaty was not binding on the European Court of Justice, he was right to the extent that it is open to the European Court of Justice to decide that its jurisdiction is determined by the nature of the treaties only. It is highly unlikely that they would do so—highly unlikely because there is a clear agreement evinced by the 28 countries, the members of the European Union. No self-respecting court that had any say for its own reputation would do violence to that agreement.

[Lord Howard of Lympne]

Is it not the case, however, that although all courts these days are unpredictable, the European Court of Justice is more unpredictable than most? Unless and until a case came before the European Court of Justice, we simply do not know what their decision will be.

[Lord Faulks]

Some courts are more predictable than others, but the confident assertion from all legal advisers whose opinion I have read is that, for example, were there to be an argument to the effect that our changes to migration arrangements were somehow contrary to the principle of free movement, there is no way that the European Court would say, “Well, the treaty has freedom of movement, but all the member states have agreed to the contrary that there should be this arrangement for the United Kingdom”. I simply cannot believe that it is arguable that there would be any other conclusion than that there was honouring of the agreement.