European Union Bill

Lord Stoddart of Swindon Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Dykes]

It can be done? Thank you for the answer. I was not quite sure.

I am very glad that the noble Lord, Lord Lea, brought his points in because they reinforce the need for the basic underlying enthusiasm for membership of the European Union to be reiterated again and again. The speech made by the noble Lord, Lord Howell, at the end of the previous group emphasised the same point, so to that extent one is very grateful indeed. Coming back to the previous discussion on Amendments 57 and 59, like the noble Lord, Lord Kerr of Kinlochard, I was not quite sure whether the description should veer between vague and unnecessary or go back to sinister. If we listen to the words of the noble Lord, Lord Willoughby de Broke, one might say that it should go back to being sinister, but I am glad to suggest to the Committee—I hope I am not being discourteous—that that is still a minority view of the worth of this country’s membership of the European Union. I always listen with great respect to the things that he espouses when he makes his arguments, even if I do not agree. At the moment, we are still with vague and unnecessary, and that is the crux of the problem. I express enormous appreciation for the very wise words of my noble and learned friends Lord Howe and Lord Mackay of Clashfern.

Returning to my noble and learned friend Lord Howe, one remembers with great affection the riveting extracts that one can still read in Hansard from the debates when the then new Conservative Government were promulgating the legislation. As Solicitor-General, he had the opportunity to re-educate Harold Wilson about the realities of the 1972 Act in general and, specifically, about Section 2, which he did with great skill, I believe. It came back to the reality, as George Brown reminded us continually before and after these events, that he could never quite persuade Harold Wilson to be a really genuinely deep, good European, as he was. It was the best they could do in the circumstances, and the rest of it flowed from that.

The report by the Constitution Committee of the House of Lords, which was published in March, has been much quoted in these debates. It referred to these matters, as my noble friend Lady Falkner said today. The scrutiny committee’s report and this report are very relevant in this context. The very specific amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, would remove the original text of Clause 18 and insert a new clause that would reassure us and dispel the doubts that might arise, such as the one to which paragraph 59 on page 16 of the House of Lords Constitution Committee report refers when it talks about this particular dilemma:

“An argument raised in evidence to the European Scrutiny Committee is that, by seeking to shield the principle of parliamentary sovereignty only in the context of EU law, clause 18 may inadvertently invite questions in the courts about why Parliament did not take the opportunity to seek to reinforce its sovereignty more generally”.

Paragraph 60 of that report concludes in dark print:

“We are confident that if parliamentary sovereignty were to be questioned in any other context, the existence of clause 18 would not prevent the courts from upholding the well understood and orthodox position”.

One may relate that directly to paragraph 118 on page 27 of the Explanatory Memorandum and the Government’s absolute reiteration of the fundamental principle in that lengthy text on Clause 18, which, they say,

“does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.

They then mention the cases that were referred to the ECJ that bore that out.

Amendment 57 is in my name and that of the noble Lord, Lord Hannay, and in the names of two other noble Lords, one of whom is unwell tonight and cannot be present—the noble Lord, Lord Tomlinson, who has given his apologies, I believe. The great beauty of Amendment 57 is that it relates back very neatly to the very text of paragraph 118, which I have just quoted, and to the actual words of the insertion suggested by the noble Lord, Lord Hannay, on page 12, line 9, at the end of Clause 18, for which we thank him. The Government’s magisterial decision will therefore surely be to accept the amendment in the name of the noble and learned Lord, Lord Mackay, with its much more precise and unshakeable reference to the 1972 Act and his inserted words that underline the fact that EU law has primacy and that would therefore dispel the doubts and restore the Government’s authority on European Union matters.

[Lord Stoddart of Swindon]

My Lords, I oppose all the amendments, and indeed the clause itself, because of a simple proposition that people will understand. Like the noble Lord, Lord Armstrong of Ilminster, I cannot claim to have any legal background in these matters. I do know, however, that during the whole of my political life, which has been a very long one, I and everyone else understands that the British constitution is based on the proposition, and indeed the law, that one Parliament cannot bind its successor. That you must hold to. It is indivisible, and once you start qualifying it you undermine the whole concept. That is why I oppose all the amendments and Clause 18, because they all seek to qualify that absolute part of our constitution.

That is such a simple proposition that all ordinary people understand what it means: that Parliament is supreme, and that what Parliament does can be undone. It is absolutely true that things can be sorted out by repealing the 1972 Act. The only problem so often is that people go on to say that that is inconceivable, but it is not. There are circumstances in which this country may wish, and indeed may have the duty, to withdraw from the Community. I know that that sounds as though it is out in the clouds. Nevertheless, there are circumstances in which it would be desirable, and perhaps essential, not to be bound by the European Communities Act, and it can be repealed. That is the essence that we have to stick to: the fact that that Act is simply an Act of Parliament that can be repealed by any Parliament in the future or in the present. I agree with those who say that letting go of that could be a dangerous course.

[Lord Deben]

My Lords, I have not been able to support the Government at all times during the passage of this Bill. I hope therefore to rectify that, at least in part, on this occasion. It seems to me that it is a mistake to say that at all times a declaratory statement is unhelpful. Clearly, there is a need for some declaration, having heard the speech of the noble Lord, Lord Willoughby de Broke, who clearly believes that what would be declared would not be right. Therefore, declaring it is not merely otiose. In the present world, it is occasionally valuable to make a statement which may for some be a statement of the obvious but clearly for some it is not. Therefore, I am happy for there to be a declaration.

My problem is not about the need for a declaration but in the wording of Clause 18. That problem arises from two directions. First, I do not believe that it is safe to have anything which is in the slightest bit ambiguous. That is not because I have the same suspicion that the noble Lord, Lord Kerr, has of the Government’s intentions. I have been reassured on that by my noble friend the Minister. It is simply because there are people in this country who will do anything possible to try to drive in wedges where there is really no hole to drive them into. Therefore, one should just make sure that one does not provide a means for them driving. Let us be careful about ambiguity.

Secondly, I wish that we would talk about these things while remembering the other countries in the European Union. There is a tendency to feel that somehow it would be perfectly all right for Britain to decide that it liked “this” Act but not “that” one. But the moment that the French, the Spanish, the Portuguese or the Slovenians do that, we get on our high horse immediately. That interesting daily newspaper, the Daily Mail, spends most of its time doing precisely that and saying that someone is being absolutely unacceptable because they are not agreeing, supporting or doing what they should under the European Union. But the moment it is convenient to complain about Britain, somehow Britain is in a different category. I do not think it harms us to be reminded of the enormous value that we have in the fact that all members of the European Union are bound by the European treaties.

Earlier, a noble Lord mentioned BSE. I do not think that anyone has had more experience of BSE than me or that anyone has been more photographed as regards BSE. I say to your Lordships’ House that the ability to insist that countries could not use excuses for restraining trade was a crucial part of this country’s defence against what turned out to be a situation which could have damaged us in an unfair and unreasonable way. That is only one example but there are dozens. Anyone with any ministerial experience knows that, within the context of the European Union, issues are pressed one way or another: Denmark may make a statement about something and the French may be difficult about something else. We are very difficult about a lot of things, which is part of the give and take of a community in which we are all members and partners. It is the same give and take that you have in any Cabinet. Sometimes there is more take than give, which has been our experience of Britain’s attitude to the European Union in my view. We have often failed to give enough and, therefore, we have found ourselves looking as though we are more concerned with the take.

I have a considerable desire to remind the House of the advantages of this clause, as amended by the amendment of my noble and learned friend Lord Mackay, and supported by my noble and learned friend Lord Howe of Aberavon. Clarity is a valuable addition to what is not an unnecessary clause but something which would be well worth having.

I end by making one comment which should be mentioned in this debate. One of the problems with our system—I support the system enormously—is that we produce legislation in our Houses of Parliament to carry into law the decisions that are made by us all around the table in the European Union. I make that point because it is not Brussels which makes those decisions. We make them with others in Brussels of our own volition. Then we carry it into law. The real concern is that, unlike many other European countries, we have a wonderful opportunity to make the whole thing more complicated. We can add this and that. “Better not leave that out”, and, “Have they thought about this possibility?”, says the civil servant. When you look to see where the gold-plating comes from, you can see that it comes from our system. I am in favour of us doing this, but I would not like to have spoken to this amendment without reminding the Committee that every time we do it, we ought to be careful. Perhaps we would do better to keep to the simplicity of much of European law rather than elaborate it for the benefit of the curious mind of the bureaucracy of Britain.

I hope that the Government will find it possible to accept the amendment. It cannot mean anything different from what they intend to mean in their Clause 18. However, if Clause 18 does mean something different, the noble Lord, Lord Kerr, is right to be suspicious. If it means the same, surely it would be better to take the wise advice of noble Lords who are learned in the law and accept that the formulation put forward by my noble and learned friend Lord Mackay, my noble friend Lord Lester and the noble Lords, Lord Kerr and Lord Dubs, is a better way of achieving something that I believe is worth while.