Monday, April 26, 2004

Insight into that constitution

23 Apr 2004 : Column 576

Mr Marples: The German constitutional court gave that short shrift in the Maastricht case, stating that, if international conventions impose binding obligations on Germany

"which require internal implementation in a way which would infringe guaranteed constitutional rights, then the measures providing for internal implementation are 'subject to review in full by German courts. In this respect the protection of basic rights provided by the Constitution is not displaced by supra-national law that could claim precedence.'"

The judgment in that case continues:

"the resultant legislative instruments would not be legally binding within the sphere of German sovereignty. The German state organs would be prevented for constitutional reasons from applying them in Germany. The Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them."

In France, there has been a similar case in the Court de Cassation, which is the supreme court.

In the so-called "metric martyrs" case here, Lord Justice Laws reiterated the position that there is nothing that the European Union could do that would take away Parliament's right to change the law—in other words, to repeal the European Communities Act 1972, or for that matter any other law, even if it put us in breach of the treaty. However, counsel for a United Kingdom public authority—admittedly, it was only Sunderland borough council—argued that Parliament could not do that.

Here we have a lawyer for a United Kingdom public authority arguing that the British Parliament cannot repeal EU legislation, or cannot repeal the foundations of such legislation. What concerns me is that we are in danger of moving much further in that direction by calling this measure a constitution, and that the European Court of Justice will certainly suggest that it can override domestic constitutional arrangements—it has done so already, and article I-10 will give it far greater power and reason to do it.

I suggest to hon. Members that a constitution is conceptually different from other law, although it is difficult for us to understand that because we do not have a written constitution. Law is made pursuant to a constitution while a constitution is an organic measure. From it, other things flow. I am concerned that, by calling this measure a constitution as opposed to just another treaty that changes the powers. In one way or another, we are opening the way for courts in member states—and perhaps, eventually, even in our own country—to do just that.

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