Lisbon Treaty (No. 3)

Yes. I want to deal with exactly that point in greater detail. The Government have relied on three arguments to defend their position. First, they claim that the charter is nothing more than a declaratory statement and that it merely codifies rights that already exist. The Foreign Secretary asserted that as recently as 18 October last year, when he wrote to the chairman of the European Scrutiny Committee to say that the charter"““only records existing rights; it does not create any new rights””." Earlier this afternoon, the Secretary of State for Justice said that the charter describes rights that already exist. Secondly, like the hon. Member for Kingston and Surbiton (Mr. Davey), the Government argue that the words of article 6 of the consolidated treaty, together with the so-called horizontal articles of the charter, protect all member states—not only the UK or Poland—from the creation of new rights by the institutions of the Union. Thirdly, Ministers claim that the protocol to the treaty in respect of this country and Poland alone makes it impossible for decisions of the European Court or the Commission to overturn the definitions of rights determined by our domestic law. The trouble is that when one starts to examine those claims in any detail, one realises that the safeguards appear less than watertight, as the European Scrutiny Committee found in its most recent report. One also has to challenge the Government on a point of basic principle. If, as Ministers say, all the rights that are included in the charter already exist in both domestic law and the European convention on human rights, what is the purpose of the charter of fundamental rights being judicable by the European Court of Justice, too? The charter sets out a number of rights that would, as a consequence of Lisbon, become for the first time rights that are embodied in EU law and judicable by the ECJ, even if they are not new rights. Most obviously, the recreation in the Lisbon treaty of the EU as a unitary legal entity means that subjects such as policing and criminal justice laws passed after Lisbon could be interpreted by the ECJ with the Court applying the rights and principles set out in the charter. The treaty goes beyond the EU simply signing up to the European convention on human rights. The charter also includes a number of articles derived from other international agreements that have been entered into bilaterally by one or more of the member states. Those rights, too, exist in those member states but they have not hitherto been part of EU law and subject to the jurisdiction of the ECJ. In practice, when we hear the Government's arguments and look at what Ministers are doing and saying, we find that they are not behaving as though they believe that no new rights are being created. If there were no new rights and no new interpretations permitted of existing rights, why is there a need for the protocol at all? The same applies to the argument put by the hon. Member for Kingston and Surbiton. If article 6, and in particular paragraphs 1 and 2, do not under any circumstances permit the extension of EU competence or the interpretation by the court of what is meant by EU competence, it is difficult to see the justification for the protocol in which the Government place such store.