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.