European Union (Amendment) Bill

I am most grateful to all noble Lords who have contributed to this remarkable debate on the charter. I think all noble Lords will agree it has been greatly enriched by the contribution of the noble and learned Lord, Lord Slynn, who sat for many years as a judge in the court and who brings that unique experience to our deliberations. I was asked a question by the noble Lord, Lord Wallace of Saltaire, from the Liberal Front Bench about what the Opposition’s policy is towards the European Court of Justice generally and the issue of sovereignty in particular. He may be disappointed to know that although the Opposition Front Bench has many robust policies on a wide range of political matters, it has not yet got a policy on sovereignty and the powers of the European Court of Justice. However, in a personal capacity, I will try and respond, telegraphically, to his question. It is important not to confuse two concepts of sovereignty. One concept of sovereignty—a concept in public international law—is about the relationship between one nation state and another. Year in, year out, the United Kingdom signs many international treaties and almost invariably the consequence of the signature and subsequent ratification of an international treaty is some constraint on the sovereignty of the British state to operate internationally. A very good example is the recent convention on torture. I cannot imagine that anybody of any political party would wish to remove that power from a nation state in international society. There, I think, there would be no difference between myself and the noble Lord, Lord Wallace. However, the issue of sovereignty that this debate raises is not the issue in public international law but the issue in domestic constitutional law, which is an entirely separate concern. Here, the point has been well made by several noble Lords from whatever point of the political compass they have been travelling. Of course, when we joined the European Community, the great cases of Van Gend en Loos, Costa and ENEL were already decided. Before we entered the Community in 1972, it was clear that European Community law had the last word on matters that fell within the terms of the treaty. The concern that has grown during the past 20 years is the scope and outreach, as the Americans say, of the powers exercisable under the treaty. It is not the principle, it is the scale that has provided the problem. My noble friend Lord Forsyth got to the root of that problem. The Community has been extremely successful in developing the rule of law; it has been extremely weak in developing a parallel concept of democracy. The speed with which the rule of law has travelled over a wider and wider range of issues and the failure of democracy to keep up with it is the fundamental weakness of the Community. As my noble friend and many other noble Lords have said, once a law is on the statute book in the European Community, it is almost impossible to reverse it—unlike the situation domestically where, if one does not like a decision of the Appellate Committee of your Lordships' House, the new Parliament can change the law and reverse it. That is almost impossible, and certainly almost inconceivable now in a European Community of 27 states. That is why there is so much concern about the charter and whether the protocol is really watertight. I heard what the noble Baroness said about the efforts of the noble and learned Lord, Lord Goldsmith, and I salute those efforts; but I cannot help thinking that he would have been much better instructed by the Government to use his energies to get the Community to adhere to the European Convention on Human Rights rather than to invent an entirely new Charter of Fundamental Rights which, in my view, is otiose. I think that it is clear—I certainly accept—that the charter does not create new rights or new competencies. I am also convinced that it cannot be used to expand existing rights; but those are not the problems that our amendments raise. They raise the problem that there is nothing to prevent a new interpretation of existing rights in the context of the charter which had their origin in the European Community changing the effect of existing law in this country. That is our concern. I am not yet convinced from what I have heard from the noble Baroness that the Government have got the wording of the protocol right. That is precisely why we have tabled our amendments. I am most grateful to the noble Baroness for her reply. It did not convince me. I shall take the amendments away and reconsider the matter, but she can be confident that I am likely to return to them on Report. I beg leave to withdraw my amendment. Amendment, by leave, withdrawn.