European Union (Amendment) Bill

moved Amendment No. 27: 27: After Clause 6, insert the following new Clause— ““Enforcement of restrictions on jurisdiction of the Court of Justice of the European Union (1) In accordance with Article 2, paragraph 223 of the Treaty of Lisbon, and subject to the limited exceptions specified in the treaties, the Court of Justice of the European Union shall not have jurisdiction with respect to the provisions in the treaties relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions. (2) In accordance with the Annexed Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, the Charter of Fundamental Rights of the European Union does not extend the ability of the Court of Justice of the European Union, 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. (3) A court or courts in the United Kingdom designated by the Secretary of State shall have jurisdiction to determine whether a judgment or opinion rendered by the Court of Justice of the European Union is or is not in conformity with subsections (1) or (2). (4) If a court is satisfied that the judgment or opinion is not in conformity with subsections (1) or (2), it may make a declaration of that non conformity (““a declaration of non conformity””). (5) Any judgment or opinion which has been subject to a declaration of non conformity shall not be binding in the United Kingdom and shall not be treated as a decision to which the provisions of section 3(2) of the European Communities Act 1972 applies. (6) In this section ““the treaties”” means— (a) the Treaty on European Union signed at Maastricht on 7th February 1992 (as amended by the Treaty of Lisbon), and (b) the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”” The noble Lord said: My Lords, in Committee the other day I supported the noble Lord, Lord Waddington, on an amendment that was broadly drawn but which reminded the House of the powers of this Parliament. It was criticised for rather lacking focus, but it gave me a chance to refer to how some other member states handle problems concerned with the scope of the powers of the institutions of the Union. Today, I have a sharp focus by concentrating on two powers to be denied to the European Court of Justice by, in one case, the treaty—no jurisdiction in relation to the common foreign and security policy, subject to specified exceptions—and, in the other case, by the Charter of Fundamental Rights, backed up by a specially created protocol saying that the rights referred to in the charter cannot be used to strike down legislation and practices in the United Kingdom. I do not need to give noble Lords the references because they know where they are—in the treaty in the first case and in the protocol in the second. My amendment tracks the language of those two treaty provisions. I say that because the protocol is declared to have the same force as any provision in the treaty. The noble Lord, Lord Dykes, is no longer in his place, but the focus that I want to start with begins with him. On 9 December last year, he put a question to the Minister for Europe, Mr Jim Murphy, which is set out in the report of the European Union Committee, in the second volume of evidence on page S73—I see that the noble Lord, Lord Grenfell, is not with us, either. To strip the question down, it was, ““Are you content with the actual text in the treaty as laid down about the expansion of the Court’s functions?””. Mr Murphy answered: "““In general, in the Treaty and the text we are content with the powers, remit and competence of ECJ. The significant areas we were keenest on was the relationship between the ECJ and CFSP and that is clear, and perhaps it could be argued that it just confirms what happens at the moment but it confirms in Treaty text that there is no role for the ECJ in terms of Common Foreign and Security Policy, and that was important for us””." I pause at this point to draw attention to the fact that our European committee picks up that passage and quotes part of it in the first volume of the report, at paragraph 4.155 on page 75: "““The Minister for Europe told us that the Government had been particularly keen to ensure that the relationship of the CJEU to the Common Foreign and Security Policy was clear, and welcomed the fact that the Treaty ‘confirms … that there is no role for the ECJ in terms of the Common Foreign and Security Policy’ … that was important for us””." In answer to the noble Lord, Lord Dykes, at question 280, the Minister for Europe told the Select Committee that the other significant area where the jurisdiction of the European Court of Justice was dealt with, "““was on the Charter of Fundamental Rights and ECJ competence. Those were the really significant in principle protections that we were looking for””." In my amendment, I focus rightly or wrongly on the two provisions about the exclusion of jurisdiction on which the Government had the strongest views. That is quite clear from the Minister’s oral evidence. The noble Lord, Lord Grenfell, who was in the chair, proceeded to put his own questions. First, he asked, "““what, if anything, does the Protocol add to the horizontal clauses in the Charter?””." Secondly, he asked whether the Minister would, "““accept as inevitable the ECJ over the course of time developing jurisprudence in the field of fundamental rights by reference to the Charter and that this might in the long run undermine the Government’s ‘red lines’?””." The essence of the answer from the Minister was: "““We are very clear indeed both politically and legally as to where we are””." I shall return to the word ““legally””. He said: "““There is an acknowledgement, or perhaps acceptance … across Europe that the Charter in and of itself does not create any additional new rights””." Then, in answer to the noble Lord, Lord Grenfell, he said: "““There were specific concerns in the UK that also existed in Poland and we sought to address those concerns … about future competence creep of the ECJ in developing jurisdiction through case law elsewhere relying on the Charter. We wished to put it beyond any doubt whatsoever and that is the purpose of the UK and probably the Polish Protocol on the Charter of Fundamental Rights … The horizontal articles do confirm that the Charter cannot expand any of the EU’s powers at all. If you like, more colloquially put, it is a belt and braces approach. We are very clear, and all other countries are very clear, that the Charter does not create new rights, that is the belt, and the braces is we have got a Protocol for the avoidance of any doubt””." I move on from what the Minister told the committee and take the House to a speech that the noble and learned Lord, Lord Goldsmith, made in January at the British Institute of International and Comparative Law. I declare an interest. I have been a member for some time. I think I am probably on the council. The last chairman was the noble and learned Lord, Lord Goff of Chieveley, and I think that I am right in saying that the current president or chairman is the noble and learned Lord, Lord Bingham of Cornhill. Academically, it is an extremely distinguished body. The attention of the House is drawn to this lecture because it is specifically referred to in paragraph 5.102 of the Select Committee’s report, where the reference is given. The paper was given on 15 January this year. The typical audience would have been judges, law dons, professors, barristers, solicitors and law students. The noble and learned Lord, Lord Goldsmith, said that he had been involved with the charter since 1999. He had been asked by the then Prime Minister to be one of the draftsmen drawing up the charter and this list of rights. He said that that was a taxing job, which took much longer than he thought. The aim of drawing it up was visibility. The draftsmen were not then thinking of it in terms of it being a legally binding document. They wanted the various rights, which were scattered in conventions and other odd places where we were party to provisions that accorded rights, to be collected together in one place. However, no new rights were to be ““minted””—that was the word used by the noble and learned Lord. After a year and a half, the Council, the Commission and Parliament ““solemnly proclaimed”” the charter as a political text—no legal status then. Time rolls on a little and we come to the constitutional treaty and the Lisbon treaty, when there was a move to give legal status to the charter. The Government insisted that the horizontal clauses should be strengthened. That was agreed and was done, but something more was needed for specific application to the UK. The noble and learned Lord, Lord Goldsmith, said in his lecture: "““However, going into the Treaty negotiations it was clear that some within the UK still needed reassurance about the possible effects of a legally binding Charter—particularly with regard to protecting UK law. The negotiations at the June European Council and subsequent Intergovernmental Conference provided Government with the opportunity to bolster the existing safeguards and set in stone how the Charter will operate in the UK, as in all Member States””." Notwithstanding all this care to create safeguards and notwithstanding the existence of the belt and braces, is it conceivable that the jurisdiction of the ECJ could trespass into the forbidden zone? Could there be what Mr Jim Murphy, the Minister for Europe, called a ““competence creep”” in the jurisprudence of the European Court of Justice? I come back to Mr Jim Murphy being questioned by the noble Lord, Lord Grenfell. At question 284 on page S75, the noble Lord said: "““We had a former judge of the European Court before us here giving evidence and he rather charmingly said that they do not do propensity in the European Court, which is to say that there was not a propensity to get more and more proactive, but at the same time we were left with the clear impression that the Court will develop considerable jurisprudence in the years to come and that one of the sources of that jurisprudence will be the Charter. Therefore, even though the Charter itself will not be creating any new rights, the European Court’s jurisprudence will in fact be leaning very heavily in some instances on Charter rights””." In response, Mr Murphy said: "““On that basis, of course, my Lord Chairman, the UK Protocol in that scenario, contrary to what has been suggested, would be significant on the basis that the Protocol is clear that no right can be derived from reliance upon a text of the Charter or the rights contained within the Charter, no new EU rights can be extended as a consequence. That is the purpose of the Protocol””." The noble Lord, Lord Grenfell, said: "““We will see if that turns out to be the case and time will tell””." The noble Lord, Lord Kerr of Kinlochard, who is not in his place any more, intervened to say that the version of the charter rights that the European Court of Justice had been citing did not contain the horizontal clauses. I rather think that he meant that the charter rights did not contain the clauses in the form in which we now have them, as they have been in since 2000. In his opinion, the protocol was unnecessary and he said that there was no reason to fear what he called, "““a constructive interpretation by a dynamic Court””." However, we know as a fact that the Government did not act on that view. They thought that the protocol was necessary and persuaded the other member states to sign up to it. Let us suppose that the unexpected or the remote happens and that the European Court of Justice, at some time in the future, uses an interpretation of the charter that it has adopted to strike down rights in United Kingdom legislation. It may be difficult for your Lordships even to think about that, but suppose that there were some creep into this area. What would happen? The best guide to that is the advice that we have from the lecture given by the noble and learned Lord, Lord Goldsmith. I am now turning to the end of it; I have got to page 24. The earlier part is narrative; it is about the part that he played and how he was concerned with the original drafting, then with the protocol and with the horizontal clauses. Then he has this heading in his lecture: ““What if the Charter is used to create/extend rights?””. He said: "““Despite the inclusion of these clear and binding safeguards, I’ve been asked what would happen if the safeguards don’t work and the Charter is used to create new rights or extend existing rights. I cannot foresee how the Charter could be used to create new rights. Were I still a politician, I would simply and rightly say that I do not comment on hypotheticals. But in this more learned environment I am free to be more speculative””." I hope that your Lordships appreciate that. He continued: "““Were the courts to disregard the clear provisions in the horizontal articles and explanations and seek to conjure new or extended rights out of the Charter, then the UK’s Protocol would indeed have teeth. It is, after all, a legally binding Protocol with exactly the same status as the Treaty provision which gives the Charter legal rights. As such, neither the ECJ nor UK courts would be able to rely on such expanded—and I would consider exorbitant—interpretations of the Charter to strike down national laws and practices or require the UK Government to change its national law and practices. In such remote circumstances, the Protocol would indeed become an opt-out. That would mean that there was a non-uniform application of uniform Union law, but there are plenty of examples of the variable application of Union law, whether by virtue of opt-outs, derogations or whatever, which are permitted or required by the Treaties themselves. Such would be the case here. But I stress again—this is entirely hypothetical—that the guarantee that the Protocol represents in this regard would only kick in in the circumstances where the clear safeguards in the Treaty of Lisbon and explanations were ignored, I cannot see that happening””." The noble and learned Lord is clearly saying that, if the unforeseeable, very remote, actually happened, such a judgment—this is how I interpret it, although noble Lords can place their own interpretation on the words—by the ECJ, adopting what he calls an ““exorbitant”” interpretation, would not be binding.