Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Pannick Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Williamson of Horton]

I do not agree with that. I think that the point is fully covered by the declaratory provision that the Government have put forward and the possible amendment of it.

[Lord Pannick]

My Lords, I, too, support the amendment. It removes the obscurity and the uncertainty in Clause 18. My answer to the question that has been posed twice now by the noble Lord, Lord Waddington, is that the amendment is clear. It is “by virtue” of the 1972 Act and therefore by virtue of nothing else that EU law is recognised and available in law in the United Kingdom. It cannot mean anything other than that. The clarity is provided, in my opinion, by the amendment. The noble and learned Lord, Lord Mackay of Clashfern, explained that the answer given by the Minister in Committee about why the clause refers generally to an Act of Parliament rather than to the 1972 Act was because there are other uses of primary legislation, such as the Equality Act, that give effect to aspects of EU law.

I will add to the noble and learned Lord’s explanation about why it is not appropriate for Clause 18 to be drafted in this general manner. First, the constitutional concern that Clause 18 seeks to address and to which he referred does not arise out of the fact that Parliament has on occasions chosen to refer to EU law obligations. The constitutional concern—and I do not share this concern—is that the 1972 Act generally imports EU law rights, powers, remedies and so forth into United Kingdom law without the need for specific enactment. If Clause 18 has any purpose at all it is to emphasise that just as Parliament created this status for EU law by the 1972 Act—and it was only by the 1972 Act—so Parliament may take it away.

The other reason why it is appropriate in Clause 18 to focus on the 1972 Act and not generally is that the 1972 Act did not just give legal effect to EU law rights by Section 2(1). Section 3 provides for recognition by English courts of EU treaties and instruments, and for such matters to be questions of law to be determined in a court in accordance with the decisions of the European Court of Justice.