Lisbon Treaty (No. 3)

The hon. Member for Elmet (Colin Burgon) made a thoughtful speech. He pointed out the significance of judge-made law, which is very relevant to some of the points that I would like to share with the House. This debate is meant to be about human rights, but actually it is not about that, because, despite some of the political arguments that are occasionally used, there is an equal commitment to human rights on both sides of the House, from all Members of Parliament. The issue is how we decide what those human rights should be and how we are accountable to the wider electorate whom we serve both in this country and in the other countries of Europe. The significance of the protocol that was negotiated by the Government—if it is watertight—is twofold. First, it is important because it is a further step towards the kind of à la carte Europe that I wish to see. I believe that model will enable not only Britain, but many European Union countries that have concerns about excessive integration to reconcile their membership of the European Union. The protocol curbing the power of the European Court is important in that respect. Secondly, it is about the wider issue of the European Union's accountability to the electorate. Let me comment briefly on both those fundamental issues. If the protocol works, it will curb, for the first time, the European Court's ability to make law in substantive areas for the United Kingdom. We should realise that this kind of à la carte Europe, which Britain has pioneered, but in which other countries have participated, has several implications. First, it is not designed just for the United Kingdom. Poland has this protocol, and other European countries, such as Sweden, Denmark and a number of other states of that kind, have also opted out in various areas. The second implication of an à la carte Europe is that it does not just give us the right not to participate in certain kinds of integration; we should also respect the right of other member states that may wish to go further. That right should be equally important. It should not have to be haggled about or negotiated, because it should be implicit in how we operate. The Schengen agreement, the single currency, the protocol and the justice and home affairs provisions contain opt-outs for some countries, and not only for the United Kingdom. We must also take into account the hugely long transition periods for all the new member states from central and eastern Europe. Even if they want to join the euro, they may have to wait nine or 10 years in order to do so. That is not simply a transition; it means that for a generation there will be a European Union of the kind that we in this House should be much more comfortable about. That is an important point. The second aspect to this matter is the wider issue of accountability to the electorate in respect of how our laws are made. Most of the dispute in this area in recent years has been not about the Court, but about qualified majority voting—it has been about the ability to take decisions that are not made unanimously. That covers very important issues, because inevitably when a minority of Governments do not vote for a proposition and it nevertheless takes effect in their nation states, there is no way that the electorates of those countries can hold their Governments accountable, because those Governments themselves were opposed to the measure imposed upon them. That is an argument as to why any decision to move to QMV should be taken carefully. I hope that such a move will take place in as few cases as possible. I come to the issue of the Court, because that is what we are really discussing today. The situation is much more dangerous and disturbing than QMV, because a decision made by the European Court is different from a judgment made by a national court. If a United Kingdom court makes a judgment that embarrasses the Government or leads to a law that Parliament never thought it intended, Parliament has the power, if a sufficient majority exists, to reverse that court's decision by making new law. The Supreme Court of the United States has enormous power to determine new law and develop the law in a fundamental and often controversial way. If a consensus existed in Congress—it does not always—and the President and Congress agreed that the Supreme Court had created a situation with which they did not want to live, even the United States has it within its own power to reverse that situation, although that rightly involves a complicated and difficult measure. Dealing with the European Court, rather than our national courts, represents a new situation. There is no way in which the decision of that Court can be reversed in a democratic fashion by those upon whom its judgment has an impact. The United Kingdom cannot reverse such a decision by itself, unless it has an enforceable protocol that can prevent the situation from arising in the first place. If the protocol does not apply, or it acts in other areas, a difficult situation arises. In theory, the only way in which a judgment of the European Court, however controversial, could be overturned would be if the Council of Ministers as whole decided to reverse it. That would require not just a majority but a decision by all 27 member states, because any one state could veto such a change.