European Communities (Community Law) (Hansard, 19 July 1994)

§ Mr. Bernard Jenkin (Colchester, North)

I beg to move, That leave be given to bring in a Bill to amend the European Communities Act 1972 so as to provide for the application of Community law within the United Kingdom to be supervised by Parliament. The purpose of the Bill is to strengthen the role of Parliament in the implementation and interpretation of European Community law as it applies in the United Kingdom.

By our accession to the treaty of Rome in 1973, we made European Community law superior to our own law. European law consists of the treaties, all the decisions, directives and regulations, and the accumulated judgments of the European Court of Justice, comprising a developed system of law on its own, distinct from the laws of the member states.

When we first joined the EEC, it was left to the national authorities of each member state to decide how to implement a directive. That is still enshrined in article 189 of the treaty, but over the years the ECJ has developed the doctrine of direct effect, which means that a directive is now binding on the member states and on their citizens alike. At the same time, it creates rights which national courts are bound to uphold.

Moreover, the doctrine of the occupied field means that powers once gained by the Community cannot be withdrawn. The ECJ has demonstrated itself to be an interpretative and innovative court. In the context of our system of common law and statute law, we would say that it was a political court. In one ruling, the court accepted that it must not be defeated by obscurities or contradictions in the text, for the real meaning can be deduced from the context or the spirit of the text". The leading textbook on EC law, Lasock and Bridge, describes how the court will fill in the gaps in the system and so update the text, acting not only as a Constitutional Court of the Community but also as an architect of European integration". In a landmark case in 1978, the court ruled that a national court which is called upon … to apply provisions of Community Law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provisions of national legislation, even is adopted subsequently, and it is not necessary for the court to request or await a prior setting aside of such provision by legislative or other constitutional means. Recently, there have been a number of judgments in which the ECJ has more confidently asserted this principle, in a way that is wholly alien to our unwritten constitution. Furthermore, the doctrine of direct effect is leading even our own courts to develop the same methods of free and political interpretation, even overturning Acts of our Parliament. Many right hon. and hon. Members will remember the Factortame case in 1990, in which the Merchant Shipping Act 1988 was simply disallowed.

Over the past two years, the Government have suffered five defeats on various reinterpretations of the 1978 acquired rights directive—the last of them on the day before the European elections. This is wreaking havoc with 196 the Government's competitive tendering and contracting out policies, which were previously regarded as perfectly reasonable and legal.

How is it that, although we are told that Parliament cannot bind its successors, we find that legislation passed by a Labour Government as a result of a directive to which they agreed now binds us to a succession of new and ever wider interpretations from which we cannot escape?

Until recently, such controversial decisions affecting policy would not have been touched by judges; the nature of these issues is clearly and obviously political. Typical of the free and loose way in which our laws are developed is what happens under article 119 of the treaty, which establishes the principle of equal pay for men and women. Pay is now widely interpreted to mean pensions, redundancy terms and other things, and goes far beyond the intention of this House when we first joined the Community.

On 3 March this year, in the Equal Opportunities case, our Law Lords effectively struck out aspects of the Employment Protection (Consolidation) Act 1978, on the basis that current differences in employment conditions between part-time and full-time workers are, in their judgment, indirectly discriminatory against women, because more women work part-time. Does this further innovation reflect the fact that one of our Law Lords is a former justice of the European Court?

There is also the continuing scandal of the huge financial settlements on pregnant former service women; it is set to cost the Government the price of a new frigate. What price "Front Line First"? Those who have fought and risked all for their country—and their widows—must wonder who decides such absurd priorities. Surely the politicians, not the judges, must decide.

This Bill does not purport to put a stop to all this, but should not this Parliament at least have a role in the process? The Bill proposes that the obligation to implement EC law should be transferred from our courts, which are making increasingly political judgments automatically, to the High Court of Parliament. That means that, where it is found that UK law is incompatible with EC law, the matter would be referred to the appropriate Secretary of State, who would then lay an Order before us, on which we could deliberate and vote.

That merely puts us on a par with our European Community partners. They all have written constitutions, which defend their national sovereignty. In France the Conseil d'État, and in Germany the Karlsruhe court—the supreme court of Germany—effectively set limits on the penetration of EC law into the system. Our Parliament is our supreme court. We are surely entitled to similar protection, the same as the others. After all, we want to be at the heart of Europe.

Governments have always been ready to reassure the House that such protections are unnecessary or alarmist. In 1975, during the referendum, we were assured: No important new policy can be decided in Brussels or anywhere else without the consent of a British Minister answerable to a British Government and British Parliament. That has gone by the board. During the passage of the Maastricht Bill, the then Foreign Minister, my right hon. Friend the Member for Watford (Mr. Garel-Jones), admitting that the ECJ has traditionally been a centralising institution, and went on to claim that he saw 197 clear signs of a change of emphasis, and I believe that that trend will be reinforced by the Maastricht treaty."—[Official Report, 27 January 1993; Vol. 217, c. 1058–60.] That is what he said, but has it been borne out by events?

Lord Denning was right when he told us what was happening to our law back in 1974, when he described EC law as an incoming tide. It flows into estuaries and up the rivers. It cannot be held back. As the 1996 renegotiation of Maastricht approaches, we are seeing a gradual evolution of Government policy. That needs to amount to a complete reappraisal—and, indeed, a new British consensus on Europe is forming, reflected not least in the sponsors whom I have gathered for the Bill. Only last week, the official Opposition declared themselves in favour of a Europe of nation states and against a federal Europe. Here is an opportunity to give a little legislative expression to these emerging aspirations.

Some may feel that it is gesture politics to introduce a Bill at this stage of the Session, and, of course, the procedure is perhaps just that, but I make no apology for giving the House an opportunity to set down a marker. If we are not prepared to stand up for the supremacy of our Parliament, we can be certain that no one else will bother.

I urge right hon. and hon. Members on both sides of the House merely to declare their belief in our powers and rights by supporting the Bill, for who else will defend them?

§ Mr. Derek Enright (Hemsworth)

May I first start by agreeing with the hon. Member for Colchester, North (Mr. Jenkin) that we really should have a written constitution. I am glad that he is now on record as saying that it would make life so much easier if we had one. I welcome him and offer him free membership of the society that seeks precisely that.

On directives—[Interruption.] If the hon. Member for Colchester, North has quite finished—he is prone to mumble, and I have heard him do exactly that in European Standing Committee B—perhaps he might think for one moment about the directive that he originally mentioned. He was absolutely correct. A directive was, and still remains, a directive from the centre, and is fulfilled in the way that individual Governments see fit.

That was one reason why we made such a mess of the directive on knackers' yards, which were running perfectly well for a very long time, yet were ordered by the European Union to ensure that they were set up in a hygienic way. No sooner were Ministers and civil servants down to it than all sorts of regulations were put in place that were absolutely and totally unnecessary. The Commission confirmed that they were totally unnecessary.

Far too often, as with the hon. Member for Colchester, North, directives are over-zealously fulfilled. Therefore, the fault Is in watching out on our own Executive. I agree with the hon. Member for Colchester, North about another genuine difficulty. It is that the Select Committee on European Legislation and Standing Committees A and B do not have the power that they should have properly to examine European legislation.

The hon. Member mentioned the acquired rights directive. I am convinced that we were right to warn the Government about what would happen. I remind the hon.

198 Gentleman that article 119 is part of the treaty of Rome and was passed long before we decided to join. The then Prime Minister, the right hon. Member for Old Bexley and Sidcup (Mr. Heath), signed up to the treaty of Rome, with which I am in total agreement. The agreement does not give equal pay. If the hon. Gentleman had bothered to read it, he would see that it gives equal rights, which are crucial for women.

The hon. Gentleman failed to mention that, under article 119, the Government have been interfered with more than any other European Government. We have been taken to court more often than any other member country for offending against women's rights, and we have been found guilty every time.

I shall not divide the House. [Interruption.] I would rather see the Bill go its little zig-zag way through the differing groups in the Government. We have the means properly to scrutinise European legislation, and we should do that. I look forward to watching the peregrinations of the hon. Member for Colchester, North as he goes about his business.