European Union (Amendment) Bill

My Lords, I am delighted to follow the noble Lord, Lord Tugendhat, who was of course a most distinguished Commissioner of the European Union. I think that I agree with everything that he said, as he agreed with the noble Lord, Lord Tomlinson, before him. At any rate, there is a degree of consensus among all three parties. I declare a couple of interests. I am currently the chairman of Justice and was, until the end of last year, a trustee of Fair Trials International. Both those organisations submitted evidence to the EU Committee. The magazine The Week has a column that lists some events of the past week under the heading, ““Boring but important””. That is an appropriate heading for the treaty of Lisbon. It is boring because it consists mainly of tweaks to the existing treaties, few of which are of any real importance in themselves or are readily comprehensible to non-experts. But the treaty is important as a whole because it makes changes that are necessary or at least highly desirable for a European Union that has increased it membership since the treaty of Nice from 15 to 27 and now finds itself in an increasingly globalised world community. As a lawyer, I will concentrate on one aspect of the treaty: law and justice, including the Charter of Fundamental Rights. The importance of these issues is demonstrated by the amount of space given to them by the extremely valuable EU Committee report on the treaty, which has been praised by many other speakers. The report takes up 261 pages. Chapter 6, which covers broad legal issues, is by far the longest, with 69 pages. If you add Chapter 5 on the European Charter of Fundamental Rights, which takes up another 26 pages, legal matters take up more than a third of the report. At present, legal matters—co-operation in the fields of justice and home affairs—are divided between the first and third pillars. The first pillar is of course the mainstream element of the EU, involving institutions such as the Commission, the European Court of Justice and the European Parliament. Decisions, unless otherwise expressly provided for, are taken by QMV. The third pillar, on the other hand, is intergovernmental. Decisions are taken by the member states without the involvement of the EU institutions. Decisions must be unanimous but, if there is dissent, those states that wish to do so can in some circumstances enter into agreements binding themselves but not the other states—a formula known as ““enhanced co-operation””. The best-known agreement entered into under the third pillar is probably the European arrest warrant, which enabled the United Kingdom to secure the immediate extradition from Italy of one of the perpetrators of the failed bombing in London of 21 July 2005 and thereby showed its value. The main effect of the Lisbon treaty is to absorb the third pillar into the first, so that police and judicial co-operation, which are now in the third pillar, will be brought into this mainstream and rejoin immigration and asylum, border controls and civil and family law, which have already been transferred to the first pillar, under the name ““area of freedom, security and justice””, or FSJ. This is an important change and I believe that it is a real improvement. In an age of international terrorist threats and cross-border organised crime, we need collective schemes of cross-border co-operation between the police and the judiciary in different member states in order to counter those things. However, changes in the case of the UK and Ireland will be minimised because of the opt-ins included in the course of negotiating the Lisbon treaty. This means that, while other countries will be subject to QMV when future legislation is proposed, the United Kingdom can just refuse to join in. Of course, it cannot then veto the change by the other states. In fact, the United Kingdom will be in a stronger position than it is now because it will be able to opt out of some legislation in which it was previously, or is now, bound by QMV. In the case of judicial co-operation in criminal matters, further protection for individual states is provided by a new process, the emergency brake, which enables a member to secede from draft legislation that it considers, "““would affect fundamental aspects of its criminal justice system””." It would be impossible to go into the details of the many relatively minor changes to the FSJ area without overrunning my time. I recognise that some provisions of UK legal systems—mainly in the field of criminal procedure—are sacrosanct. These include the right to jury trial for serious offences. I am satisfied that these provisions are more than adequately protected by the opt-in provisions in the treaty and by the emergency brake. In other fields, however, co-operation or harmonisation is often desirable. For example, where commercial law comes within the single market laws governing trade, it should apply throughout the market. Quite a lot of progress has been made, although it needs to continue. There is a similar need for the harmonisation of patent or intellectual property law. During the time that I served on Sub-Committee E of the European Union Committee, we considered several matters where harmonisation was desirable, such as having a simple small claims procedure operating throughout the whole of the EU. As a trustee of Fair Trials International, I became aware that several member states had wholly inadequate procedures for ensuring fair trial for foreigners, particularly as a result of defects in their legal aid and translation systems. Those procedures need to be brought up to the standards of the United Kingdom and other EU member states that have equally good systems, and that can surely be done only by QMV. This problem needs to be dealt with; the Lisbon treaty will, if ratified, make that easier to do. To move from unanimity to QMV would make it possible to adopt obviously sensible procedures, such as the mutual recognition of driving disqualifications or of the disqualification of sex offenders from working with children. Unanimity will, rightly, continue to apply to any EU legislation concerning family law. Some controversial proposals, such as the creation of a European public prosecutor, will continue to require unanimity and will therefore not affect the UK without its consent. The whole point of QMV, as the noble Lord, Lord Jay, said, is that some decisions will be taken that the United Kingdom dislikes, but there will in all probability be far more decisions that the UK welcomes but which would have been blocked but for QMV. Without QMV, Malta, Slovakia or any other small state would be able to block something that was agreed by all other member states. My conclusions on the new FSJ provisions are that the changes to the existing treaties are undoubtedly important, but the only change of real importance on its own is the incorporation of the provisions remaining in the third pillar into the mainstream of EU legislative competence. Any potential adverse impact on the United Kingdom is almost entirely eliminated by the opt-in. In fact, the UK has the best of both worlds. If it welcomes proposed legislation—as more often than not it will—it can opt in and take the advantage of QMV to override objections from a non-blocking minority of other states. If it does not welcome proposed legislation, it has no need to opt in. I turn to the Charter of Fundamental Rights for the remaining time available. Although the charter does not at present have legally binding force, it already has a good deal of influence—for example, with the European Court of Justice. Under the Lisbon treaty, the charter will become legally binding. That is of course an important change. The charter contains some controversial rights, such as some of the economic and social rights. However, the EU Committee, at paragraph 5.56 of its report, was not persuaded that the charter creates new rights that differ from those in the underlying national and international documents from which the charter was derived. Respectfully, I agree with its conclusion. In any event, the charter binds the institutions of the EU but binds member states only when implementing EU law. Thus, its scope is far narrower than that of the European Convention on Human Rights, which under the Human Rights Act is binding for all purposes on all public authorities in this country except Parliament. At present, the ECHR does not apply to EU legislation because the EU is not a member of the Council of Europe and therefore cannot be bound by the ECHR. This creates a human rights black hole, which the charter will eliminate. The treaty has a protocol that limits the application of the charter to the UK and Poland. The protocol falls short of being an opt-out but it specifically states that the rights in Title 4 of the charter—the so-called solidarity rights—do not create justiciable rights applicable to the UK or Poland that are not already incorporated in their national law. Finally, the treaty provides for the accession of the EU to the ECHR. This will require the agreement of the member states of the Council of Europe, which includes all the member states of the EU. This will be a highly desirable step and will reduce the risk of conflicting judicial decisions on the interpretation of the charter and the ECHR. However, that may take a long time to achieve. I have to say that, if it was certain that the EU would be able to accede shortly to the ECHR, I would regard the benefit of the charter as being fairly marginal, as the ECHR would apply to the EU in the same way as it already applies to member states. However, in the absence of certainty about accession and the likelihood of long delays, I believe that the charter’s legal status will serve a useful purpose. I therefore believe that both the charter and the new FSJ provisions will work to the benefit of the UK and that they are an important part of the argument for ratification of the treaty.