EU: Membership

Lord Mackay of Clashfern Excerpts

Monday 11th February 2013 Lords Chamber

[Baroness Warsi]

I can assure the noble Lord that we have set out on the right path. It is right for us to acknowledge, as he does, the need for reform. It is right for us to move forward with ensuring that we work out our relationship with the European Union. The balance of competences review that the Government are undertaking will lay out where we feel that the European Union helps and where it hinders.

The noble Lord asked from where support has come. Only last weekend, we saw the Prime Minister take a very front-footed, brave and national-interest position on the European budget. I could read to the noble Lord many quotes of support from around the European Union—from the Danish PM, the Swedish PM and the Finnish PM. I assure him that there is a real appetite for reform across the European Union. Those of us on this side of the House are leading that debate, but I am sure that, in due course, noble Lords opposite and, indeed, the Labour Party will also commit to that reform.

[Lord Mackay of Clashfern]

My Lords, it seems likely at the moment that some reform will be required to meet the needs of the eurozone. As the noble Lord, Lord Owen, powerfully reminded us in the debate on the Queen’s Speech at the opening of this Session, that requires the United Kingdom to have a position about what the situation should be because it is not in the eurozone. It is bound to affect the whole European Union. Surely it is better to think about it now than to wait until a decision that we have not had time to think about is suddenly required.

[Baroness Warsi]

I assure my noble and learned friend that we think about these matters all the time. A new treaty has not been ruled out; it is being actively discussed in the corridors of Brussels and many capitals across the EU. The Prime Minister agrees with those who believe that, in the next few years, the EU will need to agree on treaty change to resolve the crisis in the eurozone, to which my noble and learned friend referred, while protecting the interests of those outside the eurozone and driving forward reform for all.

Syria

Lord Mackay of Clashfern Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the situation in Syria is certainly very complicated. I read recently an account of very harsh treatment being meted out to Christian communities in Syria by forces other than government ones, whether you call them rebels or terrorists—I am not certain. Can my noble friend say whether these reports are true?

[Lord Howell of Guildford]

Again, I have to tell my noble and learned friend that it is very hard to come by precise records of exactly what is happening, who is committing these atrocities and to what extent they are intertribal activities by Alawite villagers against others. All these things are possible and they may well have happened. I cannot give a clear answer to my noble and learned friend except to say that there are many different cross-currents and many different groups who fear for their future whether Assad remains entrenched, rebel forces take over or the country descends into civil war. The future of groups such as the Christian communities is challenged by any of these eventualities; so, too, is the future stability of Lebanon.

Christians in the Middle East

Lord Mackay of Clashfern Excerpts

Friday 9th December 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I would like very warmly to thank the most reverend Primate for the opportunity of having this debate in your Lordships’ House, and for the scholarly and profound speech with which the debate has been opened. I regret to say that the standard, so far as this particular contribution is concerned, will now fall. I am particularly grateful for the opportunity that those of us who profess the Christian faith now have in this debate of standing alongside and showing support for our communities in the region to which the most reverend Primate has referred. It is very important that we show our fellow feeling with those of our fellow Christians who are under stress. I often wonder if my faith would be strong enough to respond adequately to such stress.

What can we do? One of the things we can do, as we are invited by Paul in his first letter to Timothy, is pray for the Governments of the region to which we are referring. We have to remember that Paul was thinking of the Roman imperial point of view when he said that we should pray for,

“kings, and for all that are in authority; that we may lead a quiet and peaceable life in all godliness and honesty”.

It is incumbent on those of us who profess the Christian faith and others who feel the same way to pray for the Governments of the region as the new political institutions emerge. A prayer of this kind for the region might not be altogether inappropriate for our own Government at this time.

It is also extremely important to show in our attitudes a sympathy with all people who are under stress—not just Christians, but all those who are under stress in the region, and there are many of them. The most reverend Primate has expressed this better than I can by a wide margin, but we should remember the people who are struggling to get rid of repression and all sorts of problems that have beset them in the past, and we have to hope that their expectations will not be disappointed. That is because sometimes getting rid of one repression leads to some other form of repression, so we have to hope that these emerging situations are in fact beneficial to those who have suffered so much in the past.

I also wish briefly to mention the situation of the Christian missions, based on Christian principles but serving local communities in the region. I believe that the example of practical service, not just preaching, in helping to meet the needs of the communities is great and important work. Some years ago I wrote to a representative in this country of one of the Governments in the region to express regret that restrictions had been put on the right of Christians to worship in their own way in his country. The reply I received said that his country did not wish to follow the example of the West with binge drinking, unwanted pregnancies and the prevalence of sexually transmitted diseases. He wanted to stick to the regime that they had, and I think that this illustrates the importance of good example.

In relation to Christian missions and Christian stations in the region, today I want particularly to mention the position of Canon Andrew White as the vicar of Baghdad. He has played a very important part in maintaining Christian witness in Iraq under extremely difficult circumstances. Some years ago my wife and I were privileged to form part of a group that Andrew White led in Israel. I have to say that the relationships he had with people from right across the community were very remarkable. During that visit we met people representing every strand of opinion in Israel, and your Lordships will know that that is a very considerable variety. He has shown in more recent times a fine example of Christian fortitude in the troubles that now beset Iraq. On that occasion he brought our group to the house of John Mark in Jerusalem, where a Syrian Orthodox pastor was officiating. While the Syrian pastor’s mastery of English was a great deal better than my mastery of Syrian Arabic, it was still rather poor, so he had difficulty in expressing himself to us, but the warmth of his welcome was absolutely extraordinary. It is an impression that I have retained ever since. I wish particularly to pay tribute to Andrew White’s work and I hope that he will be able to continue for a long time in his office.

European Union Bill

Lord Mackay of Clashfern Excerpts

Wednesday 13th July 2011 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, we have had a number of interesting debates on Clause 18 at every stage in your Lordships' House and in the other place. We have heard from those who sought to ensure that the clause was more than declaratory and from those who expressed concern that Clause 18 might somehow affect our obligations as a member state. As my noble friends Lord Howell and Lord Wallace of Saltaire have said, and I have made clear, that is not the case. I hope we have assured your Lordships' House very effectively that this clause is declaratory and is intended to be declaratory. It underlines the existing legal position and confirms how directly effective and directly applicable European Union law takes effect in the United Kingdom, no more and no less. It will certainly not change in any way the constructive activist/pragmatist approach that this Government have and will continue to pursue in our engagement with our European Union partners on the priorities that matter to the people of this country.

Although the clause is declaratory, we believe it serves an important and valuable purpose. I echo the words of my noble and learned friend Lord Mackay of Clashfern who said on Report:

“It is important that this declaratory measure should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so”.—[Official Report, 15/6/11; col. 790.]

I welcome the acceptance by your Lordships’ House and the other place of the principle underlying Clause 18. What we have before us, as we did on Report, is the question as to how we apply that clause and whether the 1972 Act should be the only Act which is to be covered by Clause 18. In this, I fully recognise the reasoning behind the approval which your Lordships gave to the amendment on Report.

The aim in doing so was quite rightly to make the clause as specific and clear as possible, an aim which is wholeheartedly one which one could support. But, as I have already said, I recognise the concerns expressed by noble Lords that Clause 18 should make more specific reference to the European Communities Act 1972. When we debated this on Report, I made it clear that the reason we could not accept the amendment was because we were of the firm belief that a number of other Acts of Parliament also give effect to directly effective and directly applicable European Union law independently of the 1972 Act. Therefore, to accept a provision that referenced the 1972 Act alone would be to accept a change in the existing legal position, which could go beyond what we had always intended.

Although the European Communities Act 1972 is the principal means by which directly effective and directly applicable EU law takes effect in the United Kingdom, the amendment agreed by your Lordships’ House could have created a significant risk that the courts might interpret the clause as restricting the ability of the other Acts of Parliament to incorporate directly applicable or directly effective EU law into our United Kingdom law.

The amendment accepted by your Lordships’ House also removed the phrase, “It is only” from the clause. This wording is intended to make it explicit that it is only by virtue of Acts of Parliament that directly effective and directly applicable EU law takes effect in the United Kingdom. Removing this reference leaves open the possibility of arguments to be made that directly effective and directly applicable EU law could enter into United Kingdom law by other means, which undermines the very rationale behind the clause.

Nevertheless, we have reflected on the amendment and the Government have demonstrated already that we wish to listen to arguments put forward by noble Lords. When there are grounds for a change to be made, we are prepared to make the change. In doing so, I wish to put on record our gratitude to my noble and learned friend Lord Mackay of Clashfern, with whom we have discussed in depth possible alternatives to his amendment to ensure that any amendment in lieu addresses his concerns sufficiently.

The Government subsequently proposed amendments to your Lordships’ amendment in the other place, which we believe achieve these two objectives. These amendments are before us today. It may help your Lordships if I set out how the clause will read if these two amendments are added:

“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act”.

As I have indicated, we are particularly grateful for the engagement of my noble and learned friend and for his advice. My understanding is that he is content with the amendments to his original change.

I am also pleased to note that the other place voted overwhelmingly in favour of the government amendments by 485 votes to 22. These amendments were supported by the Opposition, with the shadow Minister for Europe calling them,

“a modest improvement to what was suggested by the Lords”.—[Official Report, Commons, 11/7/11; col. 98.]

I therefore beg to move that this House acknowledges the considerable support of the other House for these two amendments to the amendment that was proposed by this House. I ask your Lordships to support these amendments today. I beg to move.

[Lord Mackay of Clashfern]

My Lords, as the one who took the main argument on Clause 18 on Report with an amendment which was carried by quite a reasonable majority in your Lordships’ House, I am happy to assure your Lordships that this debate need not be anything like as long as the previous one because I am entirely happy with the proposed amendments and the resulting Clause 18.

The amendments restrict the matter to directly applicable and directly effective EU law. We are not concerned with other Acts which introduce EU law directly—for example, where it uses a particular provision of EU law to make law in this country. We do not need to concern ourselves with that. Originally, in an attempt to meet with the Government, I drafted an amendment which covered that as well as this. But I understand that it is now agreed that we just need to deal with directly effective and directly applicable EU law.

I am not 110 per cent convinced that there are other Acts which do this but, using the suggestion of my noble friend Lord Flight of the belt and braces, there is no harm in adding this because the 1972 Act is now specifically referred to. There is no doubt in my mind that it is the key to this aspect of EU law in this country. I hope that your Lordships will accept these amendments and my gratitude to the Government for their acceptance of the principle of the amendment which was accepted here, and for defending me from various allegations that were made in the other place about my motivation.

[Lord Lester of Herne Hill]

My Lords, in respect of the amendment that the noble and learned Lord, Lord Mackay of Clashfern, successfully passed in this House, I agree with him that the clause now before your Lordships is entirely satisfactory. I just want to say a few things about it. First, I do not think that Clause 18 was ever necessary, except in a political sense. Secondly, I do not think that the law was ever unclear. Thirdly, it is one of the comical aspects of our unwritten constitution that if you ask a group of lawyers or law students the origin of the doctrine of parliamentary sovereignty, they never know the answer. The answer of course is that it comes from the common law. That answer is most unwelcome to a certain kind of thinker, who thinks, “Oh dear, if it comes from the common law, the courts might take it away again”. We do not have to go into that today.

This amendment states the position as has always been made clear in the case law and therefore does no harm. I only wish that it had not been necessary in the first place. I also wish that the original Explanatory Notes that the Government introduced had not been maintained instead of being withdrawn for political reasons for another set of Explanatory Notes, all of which shows the unfortunate aspects of a Bill which is a politically cosmetic exercise in this respect.

European Union Bill

Lord Mackay of Clashfern Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, in this group is Amendment 59, to which I have put my name along with distinguished colleagues, including the noble Lord, Lord Lester of Herne Hill, to whom I shall refer in a moment or two.

We have had an excellent introduction to the amendment from the noble Lord, Lord Hannay of Chiswick, and I am very grateful to him for that. My view is that Clause 18 is unnecessarily vague when it talks about “an Act of Parliament”. It states:

“It is only by virtue of an Act of Parliament that”—

and so on. The Act of Parliament that does that is the European Communities Act 1972 and its amendments, all properly described in a Bill of this kind as the European Communities Act 1972. Our amendment substitutes that absolutely clear and positive statement for the rather vague statement in the Bill. I cannot understand the advantage of vagueness in this context, when precision is possible without any difficulty.

Secondly, I do not regard this as of no value. There is a view in some quarters that when you join the European Union treaty, the legal order of the Union has the effect of making directly effective Union laws in all member states. We in this country have taken the view that it is the Act of Parliament, not the European Union order itself, that gives the Union legislators, particularly in relation to directly effective law, authority in our country. Parliament gave that authority and, as long as Parliament continues to give that authority, that is the basis on which the law is applicable in our country. There is no threat in this to the sovereignty of Parliament, as is sometimes suggested. Parliament, the sovereign Parliament, introduced that Act, and the sovereign Parliament is keeping the Act in position. That is a perfect authority for the legislation from Europe to be given its effect according to European law in this country.

The alternative view that the Union by itself has a legal order which effectively reaches down into the legal systems of member states without further legislation in the member states is, possibly, not all that different in effect from our view, except that I think that theoretically we have the right position here, and I would like to adhere to that.

The difference, although it is a rather narrow one, can have an effect, particularly in relation to the clauses which are called passerelle causes in the Lisbon treaty, where some extension of a European treaty is brought into being by the operation of those provisions. There was a debate in this House some time ago about those in relation to the ratification of the Lisbon treaty. My personal view is that in that situation, the ultimate decision would rest with the courts of this country on whether a particular treaty was binding here. The other point of view would say that the ultimate decision rests with the European Court of Justice. Therefore, Clause 18, stating our position as the basis of the constitutional arrangements for European legislation to be effective here, has importance. I would certainly not like to see it dropped, as long as it is clarified in the way that our amendment suggests.

My noble friend Lord Lester of Herne Hill, who is unable to be here tonight because of a long-standing appointment to which he was committed, was kind enough to say, having heard in advance what I was going to say, that he agreed with it. He also wanted to make the point that there was some discussion on the original Explanatory Notes about the basis on which parliamentary sovereignty has been established in this country. He wanted to say as an addition, slightly aside from the substance of the matter, but still with reference to the Explanatory Notes, that the authority for the sovereignty of Parliament in our country is the decisions of the courts, who recognise that authority. There is no possible question about that. I do not see how Parliament itself can establish its own supremacy without it being recognised by the courts of law. That is where the doctrine came from. That is the additional point that my noble friend Lord Lester would have made if he were here, and I am trying to make it for him.

[Lord Williamson of Horton]

When I read Clause 18, I took the view that it corresponds to what is our practice in this country, as explained by the noble and learned Lord, Lord Mackay. That approach has been confirmed in at least two judgments in the courts, as well as in our general practice and how we describe the question of the status of EU law. Why is it here? I understand that clearly. There has been considerable discussion about parliamentary sovereignty, so I understand why the Government have proposed this. Discussion in the House of Commons confirmed that concerns over those issues and whether that should be covered in statute remain. The Government have put it into statute. That does not change the substance, but it must change something, because it is here for the first time in statute; whereas before it was the practice of the courts based on the European Communities Act 1972. That is how it worked. I fully understand all that.

Here we have two amendments. One would leave the text exactly as it is but add something which comes from the Explanatory Note. That point could be looked at carefully, but it does not change Clause 18 as presented by the Government. It is not being changed; something is being added to it. The other amendment, in the names of the noble Lord, Lord Kerr of Kinlochard, and the noble and learned Lord, Lord Mackay, changes to a modest degree the text which has been put on the table. It changes it by making explicit that it is by virtue of the European Communities Act 1972 that we have recognition of availability in law of EU legislation. It is explicit on that point. It avoids the initial phrase in the Bill, which states:

“It is only by virtue of an Act of Parliament”.

It is a clarification of that point. However, it does not change the basic structure of the way in which we deal with Community legislation. We deal with it by the authority of an Act of Parliament. That is how we operate and it is absolutely imperative to stick to that. It is how we have operated ever since we have been in the European Community—or, now, the European Union—and recognition of that in statute is perfectly reasonable. There are two amendments but, in particular, we have to decide whether the wording of Amendment 59, which makes the situation explicit with the words:

“By virtue of the European Communities Act”,

and does not include the specific phrase:

“It is only by virtue of an Act of Parliament”,

is clearer and more likely to avoid misinterpretation. I tend to favour Amendment 59 for that reason.

Arms Trade: Libya and North Africa

Lord Mackay of Clashfern Excerpts

Wednesday 9th March 2011 Lords Chamber

[Lord Green of Hurstpierpoint]

I thank my noble friend but, as I said earlier, we believe that the right approach to defence goods is a case-by-case one. There are legitimate uses of many defence products and services. Some we do not market or manufacture in compliance with international restrictions, but in general the right thing to do is to follow a case-by-case approach.

[Lord Mackay of Clashfern]

My Lords, is there any harm in the Bill to which the noble Lord, Lord Alton, referred? It seems to me that it could do good. When the Bill was being debated here, I could not understand on what basis it was suggested that it could do any harm, if enacted.

[Lord Green of Hurstpierpoint]

I thank my noble and learned friend for the question. The point is not whether it could do any harm but the fact that there is real concern about whether it could do any good as it is effectively unenforceable. We do not want any distraction from the important focus on thorough pre-licensing scrutiny.