14th May speeches by Lord Blackwell

14th May 2008

Lord Blackwell: I should like to add to the already formidable list of issues raised by my noble friend Lord Howell and the noble Lord, Lord Rowlands. I shall also speak to Amendment No. 119, which is in my name, and which I hope may provide some resolution to these issues.

For the reasons that the noble Lord, Lord Rowlands, has just enunciated, few things are more important to a nation than the security of its energy supply. The problem that many of us have with this treaty is that it is completely unclear about what role exactly the European Union will play-where the limits of its role lie and what role that leaves for the nation state to pursue its obligations on security to its citizens. Article 2C of the Lisbon treaty moves energy into this new category of shared competences, where

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it is then defined as subject to legislation by qualified majority voting. Article 176A then spells out in detail that the European Union shall establish whatever measures are necessary to do a number of things, including ensuring the functioning of the energy market and ensuring security of energy supply. It goes on to say that,

"Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources".

But what does it mean to say that the European Union shall take whatever measures are necessary to ensure security of energy supply? What role does that give the European Union in taking control of our energy resources? What control does it give the European Union in directing the way in which our energy priorities are set?

This uncertainty is added to by Article 84 in the Lisbon treaty, which says:

"Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy".

I know that much of that statement was in the previous treaty, but energy has notably been added to it. What measures may the Commission and the Council, without prejudice to any other procedures in the treaties, decide to impose in a spirit of solidarity to deal with issues of energy shortage? Exactly what powers are we handing over to the European Union? Will the Commission and Council be able to control our reserves if they so wish? Will they be able to direct the way in which energy resources move within the Community?

These provisions in the treaty are completely unclear. In a measure that is so important, for the reasons that the noble Lord, Lord Rowlands, has spelt out, we need to be very clear about the exact delineation. My amendment is clear. It would not affect the words of the treaty. It would simply add to the Bill the following clarification:

"Nothing in this Act or the Treaty of Lisbon shall be taken as limiting the sole right of the United Kingdom government to take decisions regarding the control and management of the United Kingdom's energy supply".

Lord Hannay of Chiswick: I am sure that the noble Lord has done a lot of research into his amendment, but will he answer one small, factual question? Is his amendment compatible with our obligations under the International Energy Agency, which is of course nothing to do with the European Union? I believe that it is not.

Lord Blackwell: I am talking about what this Bill or the treaty of Lisbon does; I am not talking about other obligations that we may have.

Lord Hannay of Chiswick: My question is whether the amendment is compatible with our international obligations under the International Energy Agency.

Lord Blackwell: Nothing in my amendment changes any obligations that we may or may not have. It simply refers to changes introduced by the Bill and the treaty of Lisbon. I assume that, if we are already compatible, we will continue to be so. This debate is solely concerned with the treaty of Lisbon.

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I hope that the Government can assure us that nothing in the Bill or the treaty of Lisbon will change the right of the United Kingdom to take these decisions. I am sure that they will be happy to allay all the concerns that have been expressed by agreeing to the amendment so that it is included in the Bill. If they cannot agree to it, they are obliged to spell out exactly what in the Bill and the treaty of Lisbon prevents them from giving such an assurance to the Committee and to the British public.

Other Lords spoke

Lord Blackwell: The noble Lord has raised this again. Does he accept that there is a difference between an agreement that we enter into as a sovereign nation, which we can exit at our choice but where the UK Government still controls national interest, and a policy where we may not be able to decide because it is imposed on us by qualified majority voting, which the noble Lord recommends? One may believe that that is a good thing, but it is fundamentally different in kind.

Other Lords spoke

Lord Blackwell: I thank the Minister for his helpful reassurances but can he explain exactly the language in Article 87 of the Lisbon treaty which states that in areas of supply difficulty the commission may take whatever measures are necessary without prejudice to other procedures provided for in the treaties? Does that not provide an ability for the European Union to override all those reassurances if it determines that there is a situation of supply difficulties?

Other Lords spoke

Lord Blackwell moved Amendment No. 115:

After Clause 2, insert the following new Clause-

"United Kingdom courts: independence

Nothing in this Act or the Treaty of Lisbon shall be taken as requiring United Kingdom courts to enforce judgements of the European Court of Justice relating to civil or criminal law or police and judicial processes that run counter to laws passed by the United Kingdom Parliament."

The noble Lord said: This straightforward amendment seeks to establish that nothing in this Bill or the treaty of Lisbon changes the position requiring the UK courts to enforce judgments of the European Court of Justice in the specific areas of civil or criminal law, or police and judicial processes, that run counter to laws passed by the United Kingdom Parliament.

In our debate earlier this week on the provisions in the area of freedom, security and justice I made the point that justice and policing was an area that belongs within a nation state. The electorate of a

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nation expect to be able to elect a Parliament and Government that have ultimate control over their criminal law and judicial processes. I fully accept-although I may not like it-that, where the UK agrees to opt in to a measure on freedom, security and justice and then passes a law to apply that measure here, we will be signing up to the jurisdiction of the European Court on any measure in that area.

Indeed, as we noted during the week, the European Court can take the UK Government to task if it believes that they have not implemented a measure effectively in the UK. The question that follows is: if there is a dispute, who decides which law applies in the UK? Can someone apply to the UK courts for a court interpretation of the will of the UK Parliament, or is the UK court system trumped by the European Court of Justice, which has a superior position in interpreting that will?

Moreover, if the UK Parliament responded to an ECJ judgment by passing a new law that made explicit what the provisions of that law were meant to be in the United Kingdom, would the UK court system uphold the will of this Parliament, or would it regard itself as having to uphold decisions by the European Court of Justice? It is important that we are clear on these issues at this point.

In the area of freedom, security and justice, where we may not have opted in, judgments will be made and precedents developed within the rest of the European Community and it is quite possible, following precedent, that those judgments may be taken as setting precedents. Then we have the situation that, even in an area where we have not opted in, our legal system may start to define UK law based on judgments elsewhere in the European community. Much of that is normal process, but if our UK courts are asked to interpret a law according to a law passed by the UK Parliament, can we be clear that the UK Parliament's law will take precedence over the importation of precedents from the European legal system? Will judgments in the area of security, freedom and justice-where we have opted in-to do with cross-border disputes, as all measures under that area are supposed to be, nevertheless become precedents that become a determining factor in the UK legal system?

Then we come on to the European Charter of Fundamental Rights which, as we know, has the same effect in the UK as elsewhere, despite our protocol, and is binding in its consequences. The question arises of whether it can be used as an appeal mechanism to appeal against UK laws on the basis that a UK law passed by the UK Parliament offends, in the eyes of the European Court of Justice at least, against some of the measures in it. If so, will the European Court of Justice have the final say on the matter or will it be the UK courts?

I am not a lawyer, and I confess that many of these issues puzzle me. I have listened to many lawyers arguing them without coming to a clear resolution. My amendment attempts to put this matter beyond doubt by stating:

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"Nothing in this Act or the Treaty of Lisbon shall be taken as requiring United Kingdom courts to enforce judgements of the European Court of Justice",

in this area,

"that run counter to laws passed by the United Kingdom Parliament".
I live in hope that the noble Baroness the Leader of the House will respond to this by saying, "Yes, of course that's true and therefore I am quite happy to accept this amendment and add it to the face of the Bill". If she cannot accept it, it is incumbent on her and the Government to spell out that under this Act and treaty they are asking us to accept that the ECJ should have the power to override laws passed by the United Kingdom Parliament because if she does not accept this amendment, that is what she is telling us. I beg to move.

[Amendment No. 116, as an amendment to Amendment No. 115, not moved.]

Other Lords spoke

Lord Blackwell: I thank the noble Baroness for her response to the debate, the noble and learned Lord, Lord Slynn, and the noble Lords, Lord Lester and Lord Thomas. We all learnt a great deal from their interpretation of EU law. It has been a very interesting and revealing debate. As I said earlier, I understand the supremacy of EU law in general, although the way it was described was very helpful.

My amendment deals in particular with the changes introduced by this treaty-bringing freedom, security and justice for the first time under the jurisdiction of the court and introducing the Charter of Fundamental Rights. I sought to draw attention in

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particular to whether those innovations in this treaty brought the supremacy of European law to cover justice and criminal law and policing in the UK. I think the answer was a resounding "Yes, it does". That is a very interesting answer which will bear much thought. As my noble friend Lord Hunt suggested, I and others will want to take this away and consider the best way of proceeding with this argument. Given the lateness of the hour for dinner, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 116 to119 not moved.]