European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Lamont of Lerwick

Monday 18th June 2018 Lords Chamber

[Lord Lamont of Lerwick]

I would like to make a little progress, if I may. How would the will of Parliament be determined? It would be determined through political parties in the normal way, put down in the form of Motions in the House of Commons. I put it to the House that, really, this long and convoluted procedure would have little difference from the way Parliament would behave without this amendment being put in place at all.

Subject to the clarification from the Leader of the House about the Motion being justiciable and the reasons why we want it to be unamendable, I strongly support the amendment tabled by the Government and urge the House to reject that put forward by my noble friend Lord Hailsham.

[Lord Pannick]

My Lords, the noble Lord asks about justiciability. It is one of the most fundamental principles of our constitution that the courts do not and will not regulate proceedings in Parliament. Therefore, a court would presume, in the absence of the clearest statement to the contrary, that none of these amendments—in particular Amendment F3—is intended to depart from this fundamental principle. That is especially so when the mover of the amendment makes it clear that he does not intend to depart from that fundamental principle. In answer to the question from the noble Lord, Lord Lamont, it seems to me that the sanctions for any breach would be political, but they certainly would not be legal.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Lamont of Lerwick

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Lamont of Lerwick]

Against the noble and learned Lord’s will. There was also an attempt to get an opt-out, which the European Court of Justice said was not valid. I see that the Minister is agreeing with me. I believe that is a correct account of what happened. It was struck down. The case in which it happened was, I think, Aklagaren v Hans Akerberg Fransson.

[Lord Pannick]

Would the noble Lord accept that there are many areas of EU law which this country has opposed but which have nevertheless become part of EU law? This Bill seeks to exclude none of them from retained EU law, other than the charter. Why is that?

[Lord Lamont of Lerwick]

That is very much my argument. For reasons that I wish to develop, I agree very much with the noble Baroness, Lady Deech, and what was said by my noble friend Lord Faulks about the confusion and conflict that this will cause between the role of the European Court of Justice and our own courts. The President of the Supreme Court has already called for further clarification of the relationship the Supreme Court will have with the European Court of Justice. It seems to me, for reasons I am about to give, that this would be made even worse if we incorporated the charter into the Bill and into UK law.

The retention of the charter would lead to real problems of uncertainty and confusion. Above all, retaining the charter would give the ECJ even more continued influence over our courts. I accept what the noble and learned Lord has said, that there is going to be a relationship for a while with the jurisprudence of the ECJ, but incorporating the charter will give much more opportunity for what people have called judicial adventurism from the European Court of Justice, as it continues to expand the interpretation of the charter. This is not an obsession of Conservatives. I draw the Committee’s attention to what the late Lord Bingham, I think, said in evidence to the House of Lords EU Committee in 2016. He said that although,

“the European Court of Human Rights is a very benign institution … the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.

That is a reference to the expansionist activities of the ECJ. The charter, as many people know, is extremely loosely worded. The risk of leaving the charter in place is that it allows the ECJ, while it still has jurisdiction over us and our Supreme Court, to expand the charter into new areas. I am not suggesting that the rights we have are frozen for ever or should not be expanded, but merely that that is something that should be decided in this country by our Parliament.

I am also concerned, because of this and the expansion of activities of the ECJ, that if the charter were incorporated our courts would acquire the power to strike down statute on the basis of incompatibility with the charter, which is the point that the noble Baroness, Lady Deech, was making. The noble Lord, Lord Pannick, referred to the Factortame case, which was a notorious example where an Act of Parliament was actually struck down. We do not want to create another situation in which domestic courts can strike down Acts of Parliament.

It is the European Court of Justice that interprets what the charter means within the European Union, so if the charter is incorporated into law, what relationship is then going to exist between the Supreme Court and the ECJ? As the ECJ continues to develop its interpretation of the charter, we would be on a road where we had to take it more and more into account. On the basis of what has been said, we must avoid that confusion.

If there are gaps in the rights, we have an opportunity to incorporate them with primary legislation. For example, people have been saying in some of the debates that there are various matters relating to the environment that are not covered. However, we will have a new environment Act and a new environment agency. That seems to me to be the way to cope with any rights that are not fully covered, and it is far better to avoid the confusion of incorporating the charter into UK law.