Lords debate on the European Court of Justice. Friday May 21st 2004.
The Heart of the Matter. Lord Howell points to the fundamental case against the Giscard Constitution, going far beyond red lines etc. The creation of a legfal Constitution extends the njurisdiction of the ECJ into almost all walks of national life.
Lord Howell of Guildford: My Lords, I wholeheartedly join other noble Lords in thanking the noble and learned Lord, Lord Scott, for chairing and steering his committee towards this fascinating report and for the skilled and measured way in which he presented the findings to us at the beginning of the debate.
I must confess that I am not part of the very select club of learned judges and lawyers who tend to address these issues and some of my remarks may sound as though they come from outside the club. I hope that they will not cause too much offence. However, there are a number of comments I want to make about the report.
I have only just had the opportunity, during the debate, of seeing the Government's reply. I am sorry that the powers that be did not feel able to get a copy to me earlier and did not even warn me that a reply was coming. I think that that was not quite up to the Government's usual standard of courtesy. I have done what I can to read it during the course of the debate but it would have been easier to know that it was there and even easier if someone had sent me a copy.
There can be no question that the issue before us in this report, the future of the European Court of Justice, is central to the whole negotiation on a future constitution for the European Union. A number of noble Lords have recognised that this morning. The noble Lord, Lord Thomson of Monifieth, in a very wise speech based on his long experience, remarked on the scant attention that the convention seemed to give to this crucial question of the law underpinning the entire enterprise, namely the European Court of Justice—the motor, as it were. The plain and obvious fact is that a constitution must have a constitutional court to rule upon it. The report says that this will be the more so given the constitutional dimension of the current treaty. Indeed the Government's reply recognises that fact. The European Court of Justice is going to be the constitutional court. Its future shape is vital to our life and welfare as a nation and the report is right to pose, and in some cases to answer, some absolutely fundamental questions on which, so far, the Government have been deplorably silent.
Indeed, the report begins by confirming, almost on the opening page, that:

"In a number of respects the powers of the Union would be increased",
by the constitution. That simple statement in itself nullifies the numerous ministerial statements to the effect that the balance of power would be shifted to the member states. That is not so. The learned authority behind this report confirms that it is not so.
As to the questions raised, the report first asks whether the ECJ now becomes a supreme court, the "ultimate arbiter" of the constitution and its powers. The answer, at paragraph 31 of this report, is a clear yes.
The report asks whether the draft does not merely confirm, but extends the doctrine of the primacy of community law. We all know that the doctrine is there; the
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question is whether it is extended. Contrary to the views of the noble Lord, Lord Lester, to whom I always listen with the greatest respect because of his considerable learning, it seems to me that at paragraph 52 and in the conclusions on page 45, that the matter is by no means settled. Indeed, the suggestion is that with the collapse of the former separate intergovernmental pillars there is considerable uncertainty and lack of clarity. Of course, that characterises the nature of the draft constitution for which some have praise but for which I have very little praise. Certainly, as this report wisely and correctly makes clear, this is not a matter that has been addressed. It needs to be addressed because it is of central importance.
The report asks whether the Court will ultimately decide the boundaries and divisions of all competences, which, as one witness remarks in the report, are,

"grey and not black and white".
The answer to that question, at paragraph 76, is a pretty firm yes. I want to expand on the enormous ramifications of that in a moment.
The report asks whether the jurisdiction of the Court will come to embrace all Union activities, despite exemption clauses. Again, the answer is uncertain, because the constitutional draft is uncertain, but if noble Lords look at paragraph 78 and the conclusion it is probably yes.
Finally—or finally in my list, although there are many other fascinating questions—the report asks whether the ECJ's jurisdiction under the treaty extends over common foreign and security policy despite the clear excluding articles 139 and 140 in the draft treaty. The answer—at paragraph 102 of this report, to which the noble Lord, Lord Lester, rightly referred—is that it could well be so. I want to elaborate on that also.
Those are highly significant conclusions with considerable implications for all of us. It is extraordinary that we have not been able in the debate so far to give them the airing and attention which this excellent report rightly brings to bear.
I began by mentioning the report's firm conclusion, reinforced by your Lordships' speeches this morning, that the ECJ is already in a sense the constitutional court, but that it now takes on what the report calls the definite mantle of a constitutional court. From our perspective that is important because our own proposed Supreme Court—when it comes, and when it finds a place to work—will not have constitutional jurisdiction as some continental constitutional courts do, notably the German court, which of course raised the competence issue. So that is more or less accepted. Everyone agrees that that is what is going to happen.
Turning to the next key question, that of primacy of Community law, the issue is how far the draft extends it beyond present assumed levels. Professor Denza, who gave evidence to the committee, at paragraph 39, expresses no doubt that it extends so far that it calls into question the independence of a nation state's foreign policy—that is, our foreign policy. But even if one does not go quite as far as that, it is obvious that, with the new powers assigned to the Union and the long list of shared competencies which have been identified and the proposals about supportive involvement, which the noble
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and learned Lord, Lord Scott, mentioned, Union law will be enlarged and therefore the primacy of that law will be enlarged.
As the report says at paragraphs 52 and 53, where there has been uncertainty before and primacy has been challenged in certain courts, draft Article 10(1) appears to apply generally across all Union business, including common foreign and security policy. If that is right, that is a substantial and incontrovertible new incursion into our laws and freedoms. I do not think that that should be pushed aside under phrases such as "tidying up" and so on.
The next question on my list—indeed the next question posed in the report—concerns this central matter of divisions of competencies and who decides them. The clear answer is that the ECJ will decide them, which means, as paragraph 78 makes absolutely explicit, that this court will also decide the final extent of member states' powers as well, an outcome that the report says is "unacceptable"—that is the word used in the report. Yet this really is an issue that touches on the fundamental nature of the Union, and there it is embedded in the draft which is currently being discussed in Dublin and unchallenged by our Government—although, as the noble and learned Lord, Lord Scott, reminded us, and as the report reminds us, various national constitutional courts in other countries have challenged these matters in the past and may well challenge them again, particularly as there are so many ambiguities in this far from simple draft treaty.
It is going to be, of course, the European Court of Justice that will have to grapple with these matters—with the concept of shared competencies; with the fact that all these divisions are, as I said, far from being clarified and are, as I already said, grey rather than black and white; and the fact that, as the noble and learned Lord, Lord Scott, said, there are overlaps, which there certainly are.
As for matters of competencies being raised in national courts, I think I understood from the fascinating intervention of the noble and learned Lord, Lord Slynn of Hadley, that there is a problem that they have to go again—as paragraph 57 seems to confirm—to the European Court of Justice as the final court. So in the end nothing seems to be excluded from the ECJ. It can be claimed that the ECJ can have no jurisdiction over matters that have no EU element in them, but we go round in a circle. Who decides about that EU element? Even that is not clear. The draft constitution is riddled with new blurred areas and obscurities. It is bound to be the constitutional court that has to deal with them, which is why we are so right to be focusing on this issue.
Lord Lester of Herne Hill: My Lords, I wonder whether the noble Lord can clarify an obscurity in what he has been saying. Is he saying to the House that his party would welcome the avoidance of European legal black holes by giving the Court jurisdiction to review EU activity in the area of defence and foreign affairs and justice and home affairs, for example, in relation to the police? As he knows, that is an area
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where the Government are apparently not accepting our recommendations. It is important to know what the Official Opposition think about that in view of what has been said by the noble and learned Lord, Lord Scott.
Lord Howell of Guildford: My Lords, I was coming in some detail, if your Lordships will permit me, to the question of jurisdiction in common foreign and security policy. Perhaps the noble Lord will allow me to deal with that question in some paragraphs to which I should like to come in a moment. I am trying to go in sequence through the issues and was dealing with the broader question of competencies.
I just wanted to add to that that there is a mention in the Government's reply to the report of the principle of conferral. It is often claimed that the principle of conferral, which is clearly restated in the draft treaty, will protect us and prevent any competence drift and so on and so forth; the noble Lord, Lord Tomlinson, who is a great doughty champion of these matters, is often claiming just that. Again, one is left uneasy by this report, because it could be the Court that will be called upon to sort out just what has been conferred and what has not been conferred. These two matters, as well, are not clear and precise in the new treaty.
Perhaps I can try one other line of defence we hear from the apologists of the constitution—that is, that there is a clear ruling at Article 139 that expressly excludes the ECJ from foreign policy and defence matters; here I come on to the point that the noble Lord, Lord Lester, rightly raised. Is that right? It is not if one studies the detail of the draft and not if one studies this excellent report. It is not necessarily so, say the learned authors of this report. As we heard, aggrieved individuals will be free to challenge and test the legality of the member states' or the Union's actions in CFSP matters and the ECJ would be within its powers to rule on them, as paragraph 101 states.
Moreover, as the report also observes, the Union is increasingly involved in various peacekeeping and security activities which all member states will be obliged to support "actively and unreservedly" under Article 115 of the draft treaty. That obligation, says the report, would not be excluded by this constitution from the Court's jurisdiction—that is at paragraph 110—which means that it would be included if it is not excluded. That is the "black hole" to which the noble and learned Lord, Lord Scott, rightly referred. The question arises whether the answer to the black hole is to urge still more powers and involvement by the ECJ in our foreign policy and our defence policy, or whether it is to look much more closely at this draft constitution and realise that it takes us in the direction of that dilemma and these problems, and urge instead that we go in another direction, as I and my party would very much like to do in the interests both of this country and of Europe as a whole.
Lord Lester of Herne Hill: My Lords, I am sorry to press the point but I am still not clear. The Official Opposition have to have a position on the matter. Are
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they saying that they are content that there be a European legal black hole over matters such as Guantanamo, policing and so on, or that they would like the ambiguity to be resolved by a complete no-go area? The rule of law depends on answers to that question.
Lord Howell of Guildford: My Lords, that does not have to be resolved in the context of the constitution and the European Union at all. The issues are great and important—I do not question that for a moment—but we certainly do not need a new constitution that itself, by expanding the role of the ECJ in such areas, creates the black hole. I do not accept the premise behind the noble Lord's question that a political party must have a position on something that we would not wish to create in the first place. It is an absurd proposition.
The report is highly authoritative—we shall hear a lot more about it—and shows beyond all doubt that the draft constitution would extend the ECJ's reach into nearly every walk of life, which is of course what Lord Denning warned some years ago. When combined with the new charter of rights—it still sits firmly in paragraph 11 as an integral section of the draft, despite the Government's promises that they would resist that—it confirms the ubiquity of the Court's powers and the rule of its judges as never before under any previous treaty. That is why the constant claim of Ministers that the constitution is no different from wording in previous treaties is so misguided and utterly misleading. Moreover, the Government keep claiming that the constitution will be the same as that of a golf club. However, a golf club has no ECJ, and no right to tax or sanction force.
An expanded ECJ with much wider jurisdiction, as the report rightly foresees, certainly means more separation of the judges from our national affairs. Frankly, that is no guarantee of their complete political independence from broad political currents and trends. On the contrary, all experience confirms that the ECJ will be under strong political influence to be one-sidedly favourable to more integration by the EU and more central power. What could be more political than that?
I have trespassed too long on your Lordships' patience, although we have had some exchanges and dialogue, which I always welcome in debates. The report confirms our conviction that although a new and simplifying treaty is doubtless required to embrace the union of 25 states, the constitution does not provide it. Even if all the so-called red lines are held or claimed to have been held—those claims look extremely questionable—that will not solve the matter. The constitutional draft extends, expands and strengthens a higher legal order that we do not want, and that is unnecessary and undesirable both for ourselves and for Europe's future. We can do much better for Europe, and we will.
Lord Maclennan of Rogart: My Lords, the noble Lord claimed that the difficulties to which he devoted his speech stemmed from the inadequate drafting of the convention's draft constitutional treaty. Will he
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make a little more clear the proposed remedy that he has in mind to determine disputes between member states about the interpretation of treaty duties imposed on the institutions of the Union in spheres of common foreign and security policy and home and justice policy, if it is not to be the Court? If there is disagreement among the member states, how is it to be resolved?
Lord Howell of Guildford: My Lords, they would be resolved as they were in the past. I question the entire way in which the convention was constructed and operated to produce this unfortunate new constitution. We still had in the European Union, up to the time of the attempt to impose the constitution on it, a system whereby foreign policy and defence co-operation could be developed in pragmatic and sensible ways, with discussion between political leaders. We did not see the need to bring the rule of judges into the centre of such matters. Problems will obviously arise, but I do not see the need for the whole constitution to be drummed up to answer them. There are better, more practical and more limited ways of addressing the issues as we go along. That is what we did before; that is what we can do in future. I see no problem.


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