European Union (Amendment) Bill

This has been an interesting and diverse debate. I am not entirely surprised to find that it ranged so widely across many of the issues. I say again to noble Lords that any interventions from the Front Bench have been to be helpful in reminding ourselves how much time we have and how much more we want to discuss. I have no fears about the ability of the noble Lord, Lord Pearson of Rannoch, to listen with great care to what is said by any of us on the Front Bench and then to make his own decision about whether he will continue to speak. When I first started to talk to noble Lords about how we might construct our debates on the EU treaty, I proposed that we try to find a way of having a big debate on the European Court of Justice, as I knew that it would figure largely in debates on a number of occasions and I wanted, as far as possible, to be able to gather the main players in that, not least the noble and learned Lord, Lord Slynn, to inform us in our work. I know that on the Conservative Front Bench there was a real desire, which I completely understand, to look at the issues line by line in the treaty. That is a completely reasonable way in which to approach it, but I am a little sorry that that did not allow us the opportunity to have what I would have enjoyed—a much longer, more detailed debate on the European Court of Justice. Some noble Lords may blanch at the idea of a longer and more detailed debate, but it is important to have that debate, not least because of the varying views that are expressed about the Court’s relevance, how it works, and the appropriateness of its judgments. I am very grateful to those who have participated. I shall take us through the amendments and deal with the issues that noble Lords have raised. I begin where several noble Lords began, with what we want to say about the rights in the charter. I agree with those noble Lords who have assured the Committee that the rights are not new; they already bind the UK and all the member states, whenever we implement European Union law. I made some promises about whom I would quote, which I may have to stretch to answer one of the points that has been made. However, I shall try to restrict myself to Members of this House or another place or to that which is contained in the documents and reports of either House. My noble and learned friend Lord Goldsmith, who cannot be here today, made a speech to the British Institute of International and Comparative Law in January. Noble Lords will recall that he played a terribly important part in negotiations around the charter. I hope that we will have the opportunity at some point before we finish our deliberations on this treaty to hear from him. However, my quotation from him in a sense answers the question that the noble Lord, Lord Kingsland, raised about why we should have the charter. He said that, "““the Charter performs the valuable function of providing a clear, accessible statement of the rights and obligations which create limits on the EU’s powers to legislate and to act. The Charter will not impose new obligations on Member States. It will not create new rights. As the Charter reflects only existing rights, the underlying rights will continue to have effect in the UK, as in all Member States, as they always have done””." If we question the whole principle of the charter, we question those underlying rights, which the charter simply reports. Bringing existing rights together in one place makes clearer to citizens the rights that they can expect the EU institutions to respect, as member states already do when they implement EU law. The noble Lord, Lord Lester of Herne Hill, made that point in his contribution. In agreeing to make the charter binding, the UK insisted on a package of safeguards to provide greater legal clarity to define the scope of the obligations that a binding charter would place on the Union and the member states. These safeguards include improved charter general articles, improved explanations to the charter, an upfront reference to the charter in the Lisbon treaty and the UK-Polish protocol on the charter. The noble Lord, Lord Lamont, rightly talked about the journey that the UK Government have made in their concerns about the charter. Our concern was that, drafted as a political declaration, it would be insufficiently precise and detailed to be made legally binding. When we negotiated around the now dead constitutional treaty, we secured improvements to the general provisions in the charter. We also secured agreement that the courts should take due regard of a detailed commentary on the charter—in other words, the explanations that identify the precise source of each charter right, a copy of which I would be very happy to give to the noble Lord, if that would be of use to him. While the Government were satisfied with the package secured in the constitutional treaty, we wanted to address continuing concerns about the effect of the charter on national law, so we also secured a legally binding protocol, making it clear how the charter is to be applied. There are three key safeguards to ensure that a legally binding charter simply maintains the existing legal position. There are the detailed general provisions in the charter itself, which set out the limits on how it is to be applied. These are reiterated in Article 6.2 of the treaty. There is a binding reference in Article 6.2, requiring due regard to be had to the explanations. These are also published in the charter, in the Official Journal. There is also a protocol to the treaty, setting out that the charter is to apply to the UK and Poland; this is not an opt-out but a legally binding guarantee as to how the charter is to be interpreted and applied. In particular, Article 1.1 in the protocol says that it does not create new justiciable rights and, under Article 1.2, charter rights that refer to national law are limited to those rights as defined in national law. I say to the noble Lord, Lord Kingsland, that Article 1.2 makes it particularly clear that solidarity rights—Chapter 4 of the charter—do not establish rights that do not exist in national law. This chapter, which also covers the right to strike, was of particular political concern. It does not in any way undermine existing rights. The charter’s general articles set out and limit the scope and application of the charter. They make it clear that the charter is addressed primarily to the Union institutions and affects member states only to the extent that they implement European Union law. They also clarify that the charter does not extend the powers of the Union or give it any new power or task. The charter’s general provisions, and the explanations, make it clear that the rights in the charter sourced from the European Convention on Human Rights and EU law must be interpreted and applied in the same way as they are in their source instruments; that is, from where they come. The charter cannot be used to extend existing rights. As noble Lords who have read them will know, the explanations also set out the difference between enforceable rights in the charter and principles, which guide the actions of the Union’s institutions and the member states when implementing Union law but are justiciable only in the interpretation of such actions. Treaty of Lisbon Article 1.8, which replaces Article 6, will provide the key safeguards in the text of the treaties. The article provides that, "““the Charter shall not extend in any way the competences of the Union as defined in the Treaties””," that the charter provisions must be interpreted in accordance with the charter’s general articles and that ““due regard”” must be given to the revised charter explanations. In addition, as I indicated, the UK secured a legally binding protocol to the charter. The UK’s position has always been that the charter sets out existing rights. It does not create any new rights and does not extend the powers of the courts. Where, as in many cases, charter rights are based on national laws and practices, they must mirror the extent and content of those national provisions. The protocol’s intention therefore is simply to confirm these points for the UK—to put it down in black and white for all to see. The protocol has the same legal force as the treaties and is very clear. No court, including the European Court of Justice, can ignore it or strike it down. It confirms that the charter does not create any greater rights than already apply in EU law and does not extend the powers of any court—European or domestic—to strike down UK laws. It also guarantees that, to the extent that the charter refers to national laws and practices, it applies in the UK only to the extent that the rights or principles concerned are recognised in the laws and practices of the UK. All these legal safeguards, including the protocol, will ensure that the charter does what it was intended to do, which is to record the existing rights, freedoms and principles that apply in the Union. As has been said, the European Union Committee report states clearly that the committee, "““expect the effect of the change in the charter’s status to be limited””." There is no question of UK citizens having fewer rights than other EU citizens due to the UK protocol. That is because the charter creates no new enforceable rights. The existing rights and principles recorded in the charter will continue to have effect as they always have done on EU institutions and member states when implementing EU law. Amendments Nos. 87, 87A and 88 relate to the UK protocol to the charter that I have described. The amendments would remove three non-binding interpretative paragraphs in the preamble to the UK protocol to the charter. Noble Lords involved in legal matters—