§ 2.46 p.m.
§ Lord Stoddart of Swindon asked Her Majesty's Government:
§ What action they propose to take in the light of the ruling of the European Court of Justice on 19th June that courts in the United Kingdom must suspend Acts of Parliament where they conflict with European Community law.
§ The Lord Chancellor (Lord Mackay of Clashfern)My Lords, the decision of the European Court of Justice was on a reference from this House in its appellate capacity. The Solicitor-General has put certain arguments on behalf of Her Majesty's Government before the appellate committee on the effect of the judgment and we await the committee's views.
§ Lord Stoddart of SwindonMy Lords, does the noble and learned Lord agree that the ruling of the European Court is contrary to the established doctrine of this country that Parliament is sovereign? Is it not further evidence that the institutions and constitution of this country are being downgraded by our membership of the EC? Can the noble and learned Lord say what protection our fishermen have against the greed of the Spaniards who are trying to infiltrate our quotas? Are they not to have the protection of Parliament? And are Acts of Parliament to be set aside by our courts on the instruction of an alien court sitting outside the shores of this country?
§ The Lord ChancellorMy Lords, the second part of the noble Lord's question is directed to the merits of the matter presently being considered by the appellate committee. It would be quite inappropriate for me to attempt to comment on that. In regard to the first part of his question, it has to be remembered that Community law has the force of law in this country by virtue of the European Communities Act 1972 passed by the sovereign Parliament in the exercise of that sovereignty. Section 2(4)—the earlier parts of the section having provided for the effectiveness of Community law—states that,
any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section".So it is the sovereignty of Parliament which is the basis for the present law, including the effect of Community law, in this country.
§ Lord Rippon of HexhamMy Lords, does the noble and learned Lord agree that a distinction might be made where the Act of Parliament inadvertently conflicts with European Community law? Might not a different position arise if the Act of Parliament were to say:
notwithstanding anything in the European Communities Act 1972"?
§ The Lord ChancellorMy Lords, it is clear that the effect of a later Act will be subject to the provisions of Section 2(4) unless it is plain that the later Act is intended to operate in some different way. The kind of phrase that my noble friend used might well indicate 5 such an intention. But the provision of the 1972 Act was obviously intended to have an effect on later Acts in the way that I first indicated.
§ Lord MishconMy Lords, I admire the most unusual moderation of my noble friend Lord Stoddart of Swindon on these matters. Does the noble and learned. Lord agree that the situation should not come as a surprise to Parliament? It has been well known for many years—since the Act to which he referred—that where there is a conflict between European Community law and national law, Community law prevails. Does the noble and learned Lord agree—I take up the point of the noble Lord, Lord Rippon—that an injunction is a discretionary remedy which would only be exercised if the court thought it proper in certain circumstances? Will he join with me in hoping that in the course of the deliberations one finds out who could apply for such an injunction? For example, could Her Majesty's Opposition, or a Member of Parliament, apply to restrain Parliament from passing a certain Act?
§ The Lord ChancellorMy Lords, it is plain, I believe. from the Act of 1972 that the intention of Parliament in passing that Act was to make the Community law effective in this country. When I say "effective" I mean effective; in other words, no national law should have effect against it. I do not believe that there is any present question of an injunction against the passing of an Act of Parliament. While that might be a matter for the future, I would hope that it might be for the rather remote future.
§ Lord MishconMy Lords, I apologise to the noble and learned Lord for returning to the matter. Is he saying that the decision we are discussing did not include the fact that an injunction could be applied for?
§ The Lord ChancellorMy Lords, no, I did not say that. I said I did not think that there was any question in that case of an injunction arising against the passing of a particular Act of Parliament; and that I hoped, and remain of the hope, that any such question would be very much in the future if it ever were to arise.
§ Lord Stoddart of SwindonMy Lords, will the noble and learned Lord the Lord Chancellor agree that I am always most moderate in my behaviour and my questioning in this Chamber? Perhaps I may thank him for confirming that by the passing of the European Communities Act 1972 followed by the Single European Act 1986 we gave away a great tranche of our sovereignty despite the fact that those of us who predicted such a situation were told that we were talking rubbish.
§ The Lord ChancellorMy Lords, I am not sure that I would regard an assertion that the noble Lord was talking rubbish as particularly moderate, but it might depend on the circumstances. I certainly regard the noble Lord's questions as always extremely appropriate a' though sometimes rather penetrating. It is fair to say that in 1972 Parliament passed an Act which in no way prejudiced its power to pass further Acts. However, it passed an Act which it intended to have a further effect. I gather that the noble Lord did not 6 fully agree with all that was then being proposed. That Act was passed by Parliament in the exercise of its sovereignty. I do not believe for a moment that that in any way damages the sovereignty of Parliament as a concept or doctrine.