European Union (Amendment) Bill

If the hon. Gentleman has listened to any of the points I have made on previous days, he knows perfectly well that that is not my position. I shall deal with the ECJ shortly. I have found the experience of our discussions on Europe frustrating because many of my hon. Friends and perhaps others want a proper debate about the way in which the labour market will be regulated and our response to the economic forces that are now at play and appear to escape democracy's power to control them. There is a sane Labour voice to be expressed and heard on that matter, but it has failed to be properly expressed and the Government have failed to respond to it. As I said during our discussions on the programme motion, the Government tabled a series of debates on generic issues, which favour their slightly rose-tinted view of the treaty. I asked for—and I believed that I had been given an assurance—a proper debate. With no disrespect to you, Sir Alan, we have not yet secured it. I believe that that is down to the business managers. We therefore have to attempt obliquely to raise the issues that we want to discuss. We did so earlier today in the debate on human rights and now we are doing so through the amendments. I want to consider amendment No. 203 briefly before reverting to the knotty problem of the ECJ. I shall tackle the latter by referring to the charter. It will be no surprise to anyone who has listened to my comments and those of my hon. Friends that I want to concentrate on chapter IV of the charter of fundamental rights. The Government are in an unusual, even extraordinary position of saying, on the one hand, that there is no opt-out—my hon. Friend the Minister for Europe said that in the previous debate when we exchanged ideas—and, on the other, claiming that, according to their interpretation, the charter will not extend to UK law. On the other hand, there is the anomalous position of title IV, which is entitled ““Solidarity””, but which for some reason a clause in the protocol says, ““for the avoidance of doubt””, will create no new justiciable rights in the United Kingdom beyond those Acts of Parliament that are already agreed or which will be agreed in future. The phrase ““for the avoidance of doubt”” strikes me as anomalous, given that the Government's position is that there is no doubt about the rest of the charter. The charter is not meant to create any further justiciable rights in the United Kingdom beyond those enacted by Parliament. We have heard the Government say that on a number of occasions. If there was no doubt about that, why was it necessary to include the phrase ““for the avoidance of doubt””? There must be some doubt about the rest. Having listened to comments by hon. Members from all parts of the House, I have some doubts about whether the rest of the charter could create additional justiciable rights. However, I want to focus on title IV and the signal that it sends the European Court of Justice. We are in an anomalous position, whereby the rights contained in title IV have been distinguished, by the phrase to which I have referred, from all the other rights in the charter of fundamental rights. We have to ask why that clause was added to title IV. If that was not done simply to appease the business lobby, which was extremely vigorous and close to the former Prime Minister, one has to ask how title IV is substantially distinct from the other titles in the charter. I suggest that the inclusion of that provision creates an asymmetry, because when the charter and its implications come to be analysed and judged upon by the European Court, it will frequently have to strike a balance among the various rights contained within the charter. In striking those balances, legal minds will obviously be brought into play, but it is hard to escape the conclusion that some extremely fine judgments will be made that will stray from the purely legal and into the political. Indeed, the ECJ has already strayed into that area in making political judgments—it is not for me to ask about the political control through which the legislative processes of the EU can exercise some influence upon the ECJ, save to say it seems to be extremely limited. In striking a balance among the various rights contained in the charter as a whole, the Court might be minded to reflect on the fact that the United Kingdom and Polish Governments have chosen to point a finger at title IV, which contains a series of fundamental rights that I would have thought few in the House would deny, including the right of workers to collective representation and, if necessary, the right to take strike action. There are many others, too, which are there for everybody to see. When the ECJ makes judgments in industrial or other disputes, it will be somewhere in the minds of the justices that the UK and Polish Governments have pointed a finger directly at the rights under title IV and said that they are not the same as any of the others, since those Governments have taken the step of indicating that the rights under that title will not create any additional justiciable rights in their countries. Why was that done? As has been said, when the then Prime Minister came to the House and mentioned all the other achievements that he had gained, many of which were very welcome, he totally omitted to mention title IV. In subsequent debates in the House, including today's debate, the Government have failed to articulate any reason for title IV and all the rights contained in it to be treated differently from all the other rights in the charter. I asked the Secretary of State why that should be. He is currently collecting his papers: he is probably about to leave the Chamber very quickly, but that does not matter, because his reply is in Hansard for all to see. He said that the Under-Secretary of State for Justice, our hon. Friend the Member for Lewisham, East (Bridget Prentice), would give the explanation. I sat on the edge of my seat, as did my hon. Friends and, probably, Members in all parts of the Chamber. I listened very carefully to what was said by the Under-Secretary, but no explanation was forthcoming. My hon. Friend the Minister for Europe, who is now in his place, told me that he would give an account of why the exemption was made, but when I asked him to summarise what he would say, he developed a very sound critique of amendment No. 203, tabled by me and signed by a number of my right hon. and hon. Friends. I must tell him that that is not what we are looking for. We are simple souls, and we want an explanation of why the Government decided to treat title IV and the articles therein differently from all the others. The ECJ has already created a legal precedent: it has already decided to prioritise some rights over others. My hon. Friends and I referred to them earlier. The right of any EU company to establish itself anywhere in the EU is clearly one of the fundamental rights. It is in title II, as is the right of any company in the EU to provide services anywhere else in the EU. The ECJ has already determined that those two rights have priority over the rights of workers to collective representation. That was before the Government did what they did, but I can only imagine that what they have done will accelerate, exaggerate and possibly exacerbate any future decisions when the Court makes finely balanced and, I would argue, ultimately political judgments about the various rights in the treaty. That will often be at the expense of the ordinary people whom we seek to represent—increasingly so, because companies increasingly operate in a multinational framework. I have looked carefully at the amendment which stands in my name and that of many of my colleagues—and which, incidentally, is supported by every trade union affiliated to our distinguished party—and I have no doubt that the issues I have raised resonate far beyond this place. Certainly they will affect the Minister's constituency and his constituents as much as mine. Having looked carefully at the amendment, however, I do not think it achieves exactly what I wanted to achieve. I have discussed the matter with colleagues, and when the time is appropriate I shall not press the amendment to a vote. However, I hope that the Minister will be able finally to unlock the secret closet containing the notes that explain the curious and anomalous situation in which we now find ourselves.