European Union (Amendment) Bill

moved Amendment No. 7: 7: Clause 2, page 1, line 12, after ““excluding”” insert— ““(i) Article 1, paragraph 8, replacement Article 6 TEU, paragraph 1, concerning the Charter of Fundamental Rights; and (ii) ”” The noble Lord said: I shall speak also to the other amendments in this group. Your Lordships are already familiar with the way in which Amendment No. 7 works. In addition to excluding the provision in the Bill relating to the common foreign and security policy, it would also exclude important aspects relating to the charter. On the other amendments in this group, I refer in particular to Amendment No. 117, which is in the name of my noble friend Lord Blackwell. In effect, this amendment achieves in a different way the same objective as we seek. The great merit of my noble friend’s amendment is that it states in terms exactly why he believes that the charter should not be given any form of legal status in the United Kingdom. As many noble Lords are aware, the Government’s view is that the charter will make no difference at all to the legal landscape in the United Kingdom because it is incapable of creating new rights. It is fair to say that that is the view of many of the academics who have given evidence to the various parliamentary committees which have been engaged in investigating this issue. At page 23 of the third report of Session 2007-08 of the scrutiny committee in another place, the Foreign Secretary, the right honourable Mr Miliband said that, "““the Charter records existing rights; it does not create a single new right. Some people would like it to create new rights, but it does not … the Charter, in words of one or two syllables, makes absolutely clear that there is no extension of the reach of the ECJ or of any other court””." If that is so, two questions immediately arise. The first is: why were the Community draftsmen so keen on amending the treaty to include the charter? Why have the charter if it makes no difference whatever? Let us assume for a moment that it does not make any difference. What could it possibly bring? I have long taken the view that the European institutions have consistently refused to sign up to the European Convention on Human Rights because they did not want the Court in Strasbourg to have the last word on the definition of human rights. It was almost a question of prestige. Now that the charter of fundamental rights has been established through the Lisbon treaty and is about to get legal force, the Community institutions can be much more relaxed about this matter. It comes as no surprise to see that now, at last, they are indeed prepared to become signatories to the European Council’s own convention, because they believe that their court and their legal system now carry a weight as heavy as that of the European Council. That is one reason why having the charter is consistent with it having, in other respects, no legal effect whatever. The other question that arises is: if it is true that the charter has no legal effect, why did Mr Blair, then the Prime Minister, make such a fuss about the red lines? Was he just grandstanding—““impossible””, I am sure many noble Lords might say—or does he not share the Foreign Secretary’s confidence? Why did Mr Blair think that he needed the protocol? The crucial clauses of the protocol are Articles 1.1 and 1.2, which, I remind your Lordships, read as follows. Article 1.1 states: "““The Charter does not extend the ability of the Court of Justice … or any court or tribunal … of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action … of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms””." Article 1.2 states: "““In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to … the United Kingdom except in so far as … the United Kingdom has provided for such rights in its national law””." If Mr Blair is right and Mr Miliband is wrong, does the protocol put the matter beyond doubt? Article 1.1 simply reiterates the proposition advanced by Mr Miliband in his evidence to the scrutiny committee. Indeed, in his evidence in the third report of the 2007-08 Session, Mr Miliband simply sees Article 1.1 as restating the legal position in the treaty. I apologise to your Lordships for making another quotation but I think that it is germane to the argument. He says that, "““the Protocol is important because it has legal status as much as an Article, and the Protocol is absolutely clear that there can be no extended reach before the ECJ or anyone else, and that is why, in the case of working time or anything else, any judgment of the court cannot have reach into changing the laws that apply in this country ... As I say, the Charter records existing rights but there is a double-lock, because the Protocol records that the Charter shall not be used to extend the reach of the Court of Justice””." Curiously, Article 1.2 makes a reference only to one matter—Title IV—and might be said to enhance its status by comparison with other matters in the chapter. However, the protocol has a preamble, which would form part of the materials that the European Court of Justice will use to construe the protocol. That preamble states, inter alia, that the protocol is expressed to be without prejudice to other obligations of the United Kingdom, "““under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally””." What conclusions can we draw from all this? The first and perhaps most important one is that it is plain that, irrespective of the protocol, the charter does apply to the United Kingdom. Secondly, it is also plain that the final arbiter of just what effect it will have is the European Court of Justice. So the construction of the charter will, in the last resort, be a matter not for our own courts but for the ECJ. That is the basis of many people’s concern about the likely development of law once the charter is incorporated into the Community’s jurisprudential system. Compared with the United States Supreme Court, the European Court of Justice has had a short history that is not unlike the early history of that court. Neither the United States constitution nor the treaty of Rome contained any clause about the primacy of community law over national law, and yet within a very short time—in 1803 in the case of the United States, with the famous case of Marbury v Madison; and in 1964 in the case of the European Community, in the equally well known case of Van Gend en Loos—the United States Supreme Court and the European Court of Justice both declared that federal law, and European law in the case of the European Community, did indeed have primacy over domestic law. Although the intensification of legal integration has varied over the decades, there is no doubt whatever about in which direction the European Court of Justice is going; and although the protocol refers to rights, it does not refer to interpretation. The real concern is that the arrival of the charter will affect the way in which the European Court of Justice interprets the law that currently exists under the treaties. It will be through that mechanism that its influence shall be felt. The third conclusion I draw is that since the charter applies to the UK and to our courts, all our institutions will have the obligation to ensure the uniform application of European Community law. Does the protocol trump that general obligation? Mr Miliband was effectively asked that question, in a letter written to him on 11 July 2007, by the chairman of the scrutiny committee in another place. His reply of 31 July is recorded in the committee’s 35th report, and I apologise to your Lordships for taking you again to the text. It states: "““The UK-specific Protocol which the Government secured is not an ‘opt-out’ from the Charter. Rather, the Protocol clarifies the effect the Charter will have in the UK. The UK Protocol confirms that nothing in the Charter extends the ability of any court to strike down UK law. In particular, the social and economic provisions of Title IV give people no greater rights than are given in UK law. Any Charter rights referring to national law and practice will have the same limitations as those rights in national law. The Protocol confirms that since the Charter creates no rights, or circumstances in which those rights can be relied upon before the courts, it does not change the status quo””." Here the Minister omits to address the crucial problem of interpretation, which in the last resort is, as I hope I have already indicated, a matter for the European Court of Justice. In commenting on the right honourable gentleman’s letter, the chairman of the committee very fairly pointed out that as the protocol is not an opt-out from the charter, and if the Government intended that ECJ case law based on the charter should have no effect at all within the UK, then the words in the preamble to which I drew the Committee’s attention earlier, ““without prejudice””, should have been replaced by the word ““notwithstanding””. In other words, instead of saying ““without prejudice”” to all the other obligations that Community law brings to the United Kingdom, it ought to have said ““notwithstanding”” all these other obligations. The point has been developed by a number of other commentators in a slightly different context. It has, for example, been asked: ““What if the European Court of Justice is called on to interpret a provision in litigation taking place in another member state where that provision is identical to provisions that are already on the statute book in the United Kingdom and the court makes a decision to change the interpretation of the law in the United Kingdom?””. If the protocol operates ““without prejudice”” to our general obligation to implement Community law, such a decision in another member state which is relevant to an obligation that we already have to the European Community would become the law in the United Kingdom. The most obvious example, to which reference was frequently made in another place, is the working time directive. There are extremely powerful provisions in the charter regarding Title IV. If a matter such as the 48-hour week is considered in another jurisdiction, it is possible, because of the way in which the preamble of the charter is drafted, that a more rigorous interpretation by the European Court of Justice of a measure that is identical to the one in the United Kingdom will change the law in the United Kingdom. An entirely distinct point relates to the second part of the protocol, which, curiously, refers not to all aspects of the charter but only to Title IV. The Committee will recall especially the words in Article 1.2. What do we make of this? Does it mean that Title IV is only one example of all the examples taken in the charter—in which case, to that extent, one can be relaxed—or does it mean that Title IV is singled out to get special treatment which is not accorded to the other parts of the charter? That remains unclear and I would be interested to know Minister’s view. The Committee will be extremely relieved to know that I am coming to my concluding observations, both of which are in the form of questions to the noble Baroness. It appears that the EU institutions are at last going to sign up to the European Convention on Human Rights. However, can the noble Baroness tell us something about the timetable envisaged by the member states, and, in particular, what mechanisms are likely to be put in place to allow appeals to the European Court of Human Rights on decisions of the European Court of Justice? My final observation also relates to the relationship between the European Court of Justice and the European Court of Human Rights. If there is litigation in this country about a decision which involves the charter and there is a dissatisfied party who wishes to take that matter further and since the United Kingdom is already a signatory to the European convention and it is now perfectly possible through the Human Rights Act 1998 to raise convention matters in the domestic courts, what is to prevent an individual taking this matter up in litigation in this country on the grounds that the European Court of Justice had got the matter wrong and that the better view—if there is already a decision, or ought to be, if there is not yet a decision—is that held, or likely to be held, by the European Court of Human Rights? How does the Minister foresee these matters being handled in domestic litigation? I beg to move.