European Union (Amendment) Bill

I was a member of the European Court of Justice for 11 years. I declare that interest without the overwhelming sense of guilt or shame that one or two noble Lords appear to suggest I should feel. As has just been said, it is clearly right that in some areas the European court has developed important issues and principles and has created a structure for the Community which has been long established. It did not need a political motivation to interpret the treaty in those ways. The cases which have been cited with great skill—I was very happy to be reminded of them; I certainly could not have done it myself at this stage—were, however, all fully in compliance with the provisions of the treaty. It is inevitable that the European court will be involved in questions concerning the interpretation of the charter. This will include working out the relationships that have already been indicated between the charter and the European Convention on Human Rights and between the Luxembourg court—the European Court of Justice—and the European Court of Human Rights at Strasbourg. Regarding the decisions of the court in other areas, to suggest that if it comes to interpreting the charter the European Court of Justice is bound to run amok and do dreadful things is not borne out by the history of human rights. It is quite obvious that it was the European Court of Justice which introduced into the European Community the concept of fundamental rights. I believe that that has been to the great advantage of the European Union, not only the institutions but the states and their citizens over the years. In doing so, the court moved in a very moderate way, and here I am talking about the European Convention on Human Rights and the Protection of Fundamental Rights. It was not surprising that when the European Parliament and the Council of the European Community saw the way in which fundamental rights had been recognised as applying in the Community, although not specifically included in the treaties, they saw that they were necessary for the good health and working of those treaties. The European Parliament and the Council both expressed complete approval and full support for what had been done, and indicated that in the future, these fundamental rights must be regarded as part of European Community law. There was no criticism at that stage of the kind one now hears implied, that the court had got it all wrong in developing these fundamental principles. On the contrary, people accepted that what had been done was necessary and fully justified by the terms of the various treaties. As I have said, it is suggested that the European Court of Justice will run amok in some way, but let us look at what happened in the past when the court was developing these fundamental points, which were not expressed in the treaty and were not binding on the Community through the European Convention on Human Rights. The principles declared by the court were developed with what had been done in Strasbourg in mind. It was my experience that the court moved slowly in this regard because it was reluctant to take fundamental decisions on questions raised in cases before it where the Strasbourg court had not spoken, and where it had spoken, it was our practice to follow and apply as far as applicable in the Community the principles that Strasbourg had already laid down. I suggest that that attitude is likely to govern the approach of the European Court of Justice in dealing with fundamental rights issues in the future. Finally, it was suggested some years ago that there should be a reference procedure similar to that between national courts and the Luxembourg court by which that court could refer questions on interpretation of the convention—and now perhaps in the future—on interpretation of the charter to the Strasbourg court. It was not adopted at the time, although it was suggested by my predecessor as Advocate-General in the court, and I do not believe that it is necessary now. But if difficulties were to arise, this could be looked at again. It may be that the Strasbourg court could be consulted in some way by the Luxembourg court in terms of the interpretation of these various rights and non-rights as set out in the charter. That may be something that should be looked at again. All I suggest is that one should not be driven into a state of total fear and anxiety by the thought that the European court in Luxembourg may have, from time to time, to comment on the meaning or content of a particular fundamental right, and on the way in which it should be applied.