European Union Bill

Lord Kerr of Kinlochard Excerpts

Monday 23rd May 2011 Lords Chamber

I find myself saying with recurrent regret what a tragedy it was that the European Union did not reach a concerted view on the wisdom and sense of the war in Iraq. Unfortunately, our own Prime Minister had acquired an obsession in that direction. I think that he got carried away by the excitement of receiving standing ovations in the United States Congress. That was one of the causes of the tragedy. If only the European Union had been able to unite with a concerted view, we could have saved ourselves that mistaken war. However, that is a digression. All I want to do now is suggest that we need not have the rather curiously ambiguous provision in Clause 18 and that we should endorse the Scottish question of my noble and learned friend and accept his amendment in place of that.

[Lord Kerr of Kinlochard]

It is a pleasure to speak after the noble and learned Lord, Lord Howe of Aberavon. He speaks with great authority on a number of subjects, but particularly on the 1972 Act, of which he was the father.

The noble and learned Lord causes me a little difficulty. I welcome his support for the amendment in my name and that of the noble and learned Lord, Lord Mackay of Clashfern—which is not surprising, as I am rather in favour of my amendment, and I am glad that he should be rather in favour of it, too. My position is slightly different from that of the noble and learned Lord, Lord Mackay of Clashfern, who said that Clause 18 was unnecessarily vague. I believe that it is unnecessary and vague, and I would go for the amendment of the noble and learned Lord, Lord Howe of Aberavon, calling for the elimination of Clause 18 —the Armstrong-Howe amendment.

I am against the clause because I am against declaratory provisions in principle; it seems to me that they are actively undesirable. I quote, as an authority on the subject, the then Sir Geoffrey Howe, Solicitor-General in 1972, who rejected a declaratory provision of this kind in his Bill because it would be,

“futile … and … a hollow sham ... the position is that the ultimate supremacy of Parliament will not be affected”—

by the Bill—

“and it will not be affected because it cannot be affected”.—[Official Report, Commons, 5/6/1972; col. 627.]

I agree with the noble and learned Lord. I think that that is absolutely correct.

My preference is for there to be no Clause 18. However, I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, that the vagueness of the version of Clause 18 which is in the Bill is undesirable and, I would say, dangerous. I argued on Second Reading that it was potentially sinister. I hope that I was wrong about that but I have not yet heard an answer to it.

The Explanatory Notes are not much help. They attracted the particular ire of Jean-Claude Piris, the then head of the Council Legal Service, in the memorandum from which the Minister made a perhaps selective quotation. Piris said that the intention behind paragraph 104 of our Explanatory Notes “is not crystal clear”, which is a very elegant way of putting it. The Explanatory Notes say:

“The words ‘by virtue of an Act of Parliament’”—

not the 1972 Act—

“cover UK subordinate legislation made under Acts, and because of the particular context of this clause, also cover Acts and Measures of devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation”.

I do not understand that. That all derives from the 1972 Act, which is all you need to cite. Because of the 1972 Act directly applicable law applies in this country. It applies even in areas where the authority has been devolved. The 1972 Act is still the fundamental basis for all this. If we have to have a Clause 18, it should refer clearly and precisely to the 1972 Act. I thought it potentially sinister because the loose phrase “an Act” could be construed as referring to future as well as past Acts. The reference to the 1972 Act is only implicit and not explicit as the clause stands.

On Second Reading I wondered whether it was some kind of a dog-whistle or signal to those who would like us to be able pick and choose, to apply or disapply particular pieces of EU law depending on whether we like them. Of course, the Government know that that is not possible. Their notes say that nothing affects the primacy of EU law. The addition to the text suggested by the noble Lord, Lord Hannay, would say that explicitly in the Act. Why go for such vague wording? Why have something that is open to the interpretation that it might cover future Acts? I withdraw the word “sinister” as that goes too far, but I will settle for the words of the noble and learned Lord, Lord Mackay—“unnecessarily vague”, and add unnecessary. I believe that Clause 18 is unnecessary and unnecessarily and dangerously vague.

[Lord Willoughby de Broke]

My Lords, I hesitate to introduce an inquiring note to this love-in. I do not know whether noble Lords have read the Commons European Scrutiny Committee report on this Bill, which has some interesting things to say on the principle of parliamentary sovereignty, having listened to a lot of legal evidence.

I draw the Minister’s attention to what that report says in paragraph 76, as it might help him. The committee states:

“We think it right that, should an Act of Parliament instruct the courts to disapply an aspect of European Union law, the courts should do so: this is not only consistent with the case law of the courts, but also with the doctrine of the legislative supremacy of Parliament; and also with the rule of law.

As I said on Second Reading:

“Encouragingly, the committee goes on to conclude that it is entirely within bounds for Parliament to ask judges to disapply any aspect of European Union law if that is the will of a democratically elected Parliament, even if—this is important—that were to lead to infringement proceedings in the EU Court of Justice”.—[Official Report, 22/3/11; Col. 699.]

There seems to be a divergence of opinion. Who is right—those who say EU law is supreme and should be within the Bill as the amendments suggest; or is the Commons European Union Scrutiny Committee right? It presumably has had legal advisers to instruct them as well. I suppose that we ought to take account of the fact that the French Government threw out the Romanian Gypsies, which must have been contrary to EU law. However, as far as I know, no infringement proceedings were taken. Even now, the French and Danes are ignoring the provisions of the Schengen agreement, which they signed, and are putting in place border posts. As is well known, the French stopped a train from Italy that contained Tunisian emigrants who were given some sort of EU passe-partout and were supposed to be allowed into France. The French police stopped the train and would not let them in. Denmark has reinstated full border controls to stop immigration. Therefore, the argument about the complete supremacy of EU law does not any longer hold. I will be interested to hear what the noble Lord or his advisers say about this in response to the amendments.