European Union (Amendment) Bill

The noble and learned Lord, Lord Slynn, is here, my Lords, and he can respond. My experience would be that, once the court has given a judgment, it does not go back to its debating room and say it has made a mistake. There have been cases where it has looked again at a judgment but that is very rare. I do not think the Taff Vale case would be as good a precedent as the noble Lord supposes. I think that he mentioned that the other day. The Minister is telling us that the European Court of Justice cannot rely on the charter. He refers to the protocol being invoked then and says that we are very clear legally as to where we are. He also said that there was a legal answer if the European Court of Justice moved into this unexpected territory. One is, perhaps, entitled to infer that the Minister knew something of the views of the noble and learned Lord, Lord Goldsmith; the noble and learned Lord is now with us, so we may have the benefit of his comments on this topic. The idea of having different decisions in different parts of the EU, the variable geometry, is clearly contemplated in what the noble and learned Lord, Lord Goldsmith, was saying. May I give the legal argument, as I see it, as to why the UK would not be bound by a judgment of the European Court of Justice if rendered outside its jurisdiction? By the treaties, there is a transfer of competence to the Union within defined limits. That can be found in the EU treaty in the consolidated volume at articles 4.1 and 5.1 Here we have an express provision that jurisdiction is not conferred—it is a negative—as regards CFSP. We also have a bar on using the charter to create new rights or extending existing rights. That is the combined effect of the horizontal provisions and the protocol. Under Article 19.1 of the EU treaty, the ECJ is bound to ensure that in the interpretation and application of the treaties the law is observed. Part of the law is the agreement on member states recorded in the treaties which clearly state that there is no jurisdiction in these two areas. In my speech the other day I referred to Germany and Denmark; I will not weary your Lordships with repetitions but will give the reference and the key sentence. I referred to the Brunner case in Germany and the Rasmussen case in Denmark. I quoted from the last sentence of the Brunner judgment: "““Accordingly the Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them””.—[Official Report, 14/5/08; col. 1094.]" In Germany, the supreme constitutional court reserves the right to look at instruments and see whether they—