European Union Bill

Lord Howe of Aberavon Excerpts

Monday 23rd May 2011 Lords Chamber

[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.

[Lord Howe of Aberavon]

My Lords, as I rise to support this debate, I sense a curious parallel of feelings. Quite recently I received in an e-mail, in the magic way that one does, a photograph of our eldest daughter holding in her arms her grandchild. That means that the noble Baroness, Lady Howe of Idlicote, and I have simultaneously become great-grandparents, and it is with that sort of sense that I now look back on this section of the European Communities Act 1972.

The remarkable thing is that from the outset it was understood that joining the European Community, as it then was, involved the arrival of a situation in which Community law was to be directly applied in this country. My noble friend Lord Howell knows that as clearly as I do because, as I have said before, we published a magnificent article written by Dennis Thompson entitled The Rome Treaty and the Law long before we were in a position to introduce legislation. The striking thing about that article was the same striking thing that we are discussing now—namely, the direct application in this country of existing law and law yet to be made in the European Community. For a more respectable origin than that, I go back to the White Paper produced by the Wilson Government in 1967 before we succeeded in getting membership of the Community. The White Paper says:

“‘If this country became a member of the European Communities it would be accepting Community law. By ‘Community law’ is meant the whole body of legal rights and obligations deriving from the Treaties or their instruments’”.

I am quoting from Hansard of 1972. I interposed, “So far, so good”, and then continued,

“it would be necessary to pass legislation giving the force of law to those provisions of the Treaties and Community instruments which are intended to take direct internal effect within the Member States”.—[Official Report, 17/2/72; cols. 650-51.]

That was foreshadowed in 1967.

Perhaps the most striking phrase in Section 2(1) of the 1972 Act is “without further enactment”. Therefore, the legislation that we were passing meant that laws made within the Community structure took direct application here as a result. There was, admittedly, some variation in that because that is how regulations took effect, whereas directives needed to be converted into English law, as they did not have direct application.

Therefore, there is no surprise about this provision. The only surprise that I have had has been the emergence of Clause 2 of the Bill. Speculation was rife throughout the country when we were preparing the Bill that became the European Communities Act about whether it was going to be a one-clause Bill, a 10-clause Bill, a 100-clause Bill or a 1,000-clause Bill. There was tremendous speculation along all those lines. In fact, this central provision was absolutely fundamental. It has been fundamental from the outset and has been part of our membership of the European Community. It is not a burden upon us; it is beneficial to us but within the framework of the European Union. To take the most obvious example, how would we have been able to ensure that the French withdrew their ban on BSE-tainted beef? The legislation that we were entitled to invoke to make that happen was legislation of this kind, particularly in France. It has always been fundamental and I really cannot see how one can question its importance and value. The question is how it is best expressed now in the light of the Bill before us.

--- Later in debate ---

[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.