Lisbon Treaty (No.1)

Let me make a bit of further progress and I shall come back to the hon. Gentleman. Article 35 of the treaty on the European Union states,"““the Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security””." That brings me to some of the differences between the Lisbon and constitutional treaties; they are particularly important in the area of justice and home affairs. Open Europe has said that, given the fact that 10 of the 250 proposals are different, 96 per cent. of the Lisbon treaty is the same as the constitution. However, a Nature article in 2005 reported the discovery that 96 per cent. of the DNA of all of us in the Chamber is the same as that of a chimpanzee; we would surely agree that the differences between us and chimpanzees are more significant than the similarities. In fact, there seem to be several very important differences between the JHA provisions in the constitution and in the Lisbon treaty. First, there is specific language to enable some member states to proceed with measures on police and judicial co-operation while others do not participate. Secondly, under protocol 20 there is an extension of the UK's 1997 opt-out on JHA to judicial co-operation in criminal matters and police co-operation. The significance of that in the context of previous decisions in the European Union is extraordinary, and I am not sure that Members have fully appreciated it. In effect, our EU partners have allowed us to join the club on justice and home affairs under the condition that we can unilaterally decide which rules we want to apply and which we do not. This is à la carte Europe, not for any other member state, but for Britain, and it is new in the Lisbon treaty—it was not in the constitutional treaty. Obligations placed on other member states will be sustained, yet we will be free to opt out of any such obligations that might be imposed on us. In painting his alarming picture of being overrun by people who do not care about civil liberties, the hon. Member for Beaconsfield raises the question of what happens if we do decide to opt in to justice and home affairs matters—as I very much hope that we will, given the internationalisation of so many of the problems that we face. Are we still able to use the emergency brake that sends an issue to the European Council? Yes, indeed we are. It is still possible for us to go to the European Council, although the hon. Gentleman did not touch on that at all. It is deeply significant that article 9B(4) of the Lisbon treaty—I hope that Conservative Members will look at it—deals with what happens when such matters are referred to the European Council. It explicitly states that, except where the treaties so provide, the European Council will determine those matters ““by consensus””. In legal terms, that means that every single participant in the European Council has a national veto over what will be determined there. The entire picture that the hon. Member for Beaconsfield painted of our being completely defenceless if we make the mistake of going ahead and participating in any of these areas—