My Lords, as I rise to support this debate, I sense a curious parallel of feelings. Quite recently I received in an e-mail, in the magic way that one does, a photograph of our eldest daughter holding in her arms her grandchild. That means that the noble Baroness, Lady Howe of Idlicote, and I have simultaneously become great-grandparents, and it is with that sort of sense that I now look back on this section of the European Communities Act 1972.
The remarkable thing is that from the outset it was understood that joining the European Community, as it then was, involved the arrival of a situation in which Community law was to be directly applied in this country. My noble friend Lord Howell knows that as clearly as I do because, as I have said before, we published a magnificent article written by Dennis Thompson entitled The Rome Treaty and the Law long before we were in a position to introduce legislation. The striking thing about that article was the same striking thing that we are discussing now—namely, the direct application in this country of existing law and law yet to be made in the European Community. For a more respectable origin than that, I go back to the White Paper produced by the Wilson Government in 1967 before we succeeded in getting membership of the Community. The White Paper says: "““‘If this country became a member of the European Communities it would be accepting Community law. By ‘Community law’ is meant the whole body of legal rights and obligations deriving from the Treaties or their instruments’””."
I am quoting from Hansard of 1972. I interposed, ““So far, so good””, and then continued, "““it would be necessary to pass legislation giving the force of law to those provisions of the Treaties and Community instruments which are intended to take direct internal effect within the Member States””.—[Official Report, 17/2/72; cols. 650-51.]"
That was foreshadowed in 1967.
Perhaps the most striking phrase in Section 2(1) of the 1972 Act is ““without further enactment””. Therefore, the legislation that we were passing meant that laws made within the Community structure took direct application here as a result. There was, admittedly, some variation in that because that is how regulations took effect, whereas directives needed to be converted into English law, as they did not have direct application.
Therefore, there is no surprise about this provision. The only surprise that I have had has been the emergence of Clause 2 of the Bill. Speculation was rife throughout the country when we were preparing the Bill that became the European Communities Act about whether it was going to be a one-clause Bill, a 10-clause Bill, a 100-clause Bill or a 1,000-clause Bill. There was tremendous speculation along all those lines. In fact, this central provision was absolutely fundamental. It has been fundamental from the outset and has been part of our membership of the European Community. It is not a burden upon us; it is beneficial to us but within the framework of the European Union. To take the most obvious example, how would we have been able to ensure that the French withdrew their ban on BSE-tainted beef? The legislation that we were entitled to invoke to make that happen was legislation of this kind, particularly in France. It has always been fundamental and I really cannot see how one can question its importance and value. The question is how it is best expressed now in the light of the Bill before us.
On the whole, I support the proposal made by my noble and learned friend Lord Mackay because it recites the foundation and makes it clear that we are merely endorsing for the sake of the future that which we can rehearse from the past. I do not think that there is much more to say than that. The important illustration is the way in which it comes into our jurisdiction in certain cases. I may have recited this before but it shows the effect. In the Spanish shipping case, when we were challenged in the European Court of Justice for having legislation that infringed Community law, the court gave judgments to that effect. We therefore had to change our primary legislation—indeed, we had to repeal clauses of it—and we did so by invoking the next clause of the 1972 Act. A statutory instrument was affirmed by both Houses of Parliament and was then presented to Her Majesty to be given final legitimacy and to have the effect that it had. As it happened, that was the first instrument that I had to present to Her Majesty at my first attendance as Lord President of the Council. It was rather striking to read out the title of a statutory instrument, passed by Parliament in order to carry into law in this country the decision of the European Court of Justice. That happened because, when I read out the instrument, Her Majesty said, ““Approved””. That was a remarkable legislative sequence. It provoked me to give a lecture to the London School of Economics analysing its impact. Who was exercising whose sovereignty? The sovereign was exercising the last step in carrying into effect Section 2 of the 1972 Act. That is the best way of maintaining what is necessary for the effective operation of our membership of the European Union, as it now is.
I could not quite work out, any more than anyone else could, the purpose of Clause 18, as it contains certain ambiguities, whereas the provision that I now support—namely, the one proposed by my noble and learned friend Lord Mackay—makes the position absolutely clear. It merely reaffirms that my great-grandchild is still alive, covering a rather larger section of Europe, and it is very important for us to recognise that.
I add one thought on the point made by the noble Lord, Lord Radice. It is important to understand why we subject ourselves to legislation of this kind. It is part of the entire coherence of the European Union within which we can best exploit Britain’s national interests in the world. Britain alone has very little influence and, as we shrink our defence forces because we cannot afford them and as we question our ability to sustain the generosity of our present overseas development assistance, it is all the more important for us to be able to spread our influence and achieve our objectives in partnership with our European partners.
Archimedes said—I have quoted it before, and I will quote it again— "““give me a place whereon to stand … and I will move the world””."
For Britain today, the place whereon we cannot stand is on our own. I know that my noble friend Lord Howell would never forgive me if I did not mention the Commonwealth as well. In a different way, it is an extremely important framework within which we can extend and assert our influence. It gives us communication to a tremendous range of countries around the world, but the European Union is the one which is closest to us in a large range of interests.
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.
European Union Bill
Proceeding contribution from
Lord Howe of Aberavon
(Conservative)
in the House of Lords on Monday, 23 May 2011.
It occurred during Committee of the Whole House (HL)
and
Debate on bills on European Union Bill.
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