Lisbon Treaty (No. 3)

I do not doubt that a choice will have to be made in some areas and that occasionally, with a great lack of enthusiasm, we will have to acknowledge that an international court may need to be the body that makes law that imposes itself on us, as it does on all other countries. The right hon. Gentleman should not get carried away with enthusiasm. I am saying that the onus will be on those who want such a situation to prove that this country's citizens have an enormous interest in sacrificing their own control over how decisions are made in order to achieve certain objectives. Sometimes that test may be met, but such occasions will rightly be relatively rare. If the European Court is able to reach judgments that cannot be overturned, however controversial, unless there is unanimity in the Council of Ministers, it in effect has the last word and is all powerful. That really is power without responsibility. The other crucial point that has not been mentioned today is that the European Court's position with regard to the charter of fundamental rights is quite different from its position until now. Until now its role has been one of interpreting directives and specific pieces of legislation covering relatively narrow areas. The very point of the fundamental charter is that those rights are expressed in very broad terms, and that is exactly how judge-made law can expand in a dynamic fashion. We have seen in the US how the Supreme Court has used provisions that were put in the constitution more than 200 years ago on cruel and unusual punishment to deal with the issue of capital punishment. The right to bear arms is also used to justify the right of Americans to carry guns in the most extraordinary circumstances. Those dramatic developments of law have an impact on ordinary people, and Parliaments and other accountable bodies have not been involved. Just as the US Supreme Court has that power, so the European Court would have a comparable power with the charter of fundamental rights. The situation is worse than with qualified majority voting because even when we or another Government are outvoted in the Council of Ministers, and have to accept a judgment that we do not like, QMV is normally—although not always—applied at the end of a long negotiation in which compromises are invariably made to assist the minority Government or Governments to live with the outcome. I have taken part in such Council of Ministers discussions as part of both the minority and the majority sides. Strenuous efforts are made to help the Governments who are being outvoted to live with it and sell it to their electorates. It does not always work, but the effort is made. When laws are made by the European Court, there are no negotiations, compromises or attempt to recognise the political realities. The rules are simply pronounced in the judgment and Governments have to like it or lump it.