European Union (Amendment) Bill

My Lords, I speak to Amendment No. 28, which is not germane to what the noble Lord, Lord Neill of Bladen, has been saying; nevertheless, I must deal with it in this way. I can deal with it telegraphically, largely from a quotation from the Constitution Committee report of 28 March. First, however, as to Amendment No. 27, on 29 April—the second Committee day of the Bill—we tabled an amendment about the charter. That led to a long, but nevertheless informative, debate. Our point was not so much about the flagrant breach of the protocol as a consequence of a European Court of Justice decision, but the much more insidious danger of European Court of Justice interpretations of measures which were already applicable in this country, made as a result of litigation in other member states, changing the law here. The noble Lord, Lord Neill of Bladen, poses a serious problem and his solution is attractive. However, it would be a remarkably bold judgment, even by the European court, to breach so flagrantly the terms of the protocol, which expressly refer to ““no further extension rights””. That expression is clear. If the court were in breach of that and extended rights in the United Kingdom as a result of interpretations of the charter, then the solution of the noble Lord, Lord Neill, would be—to me, at any rate—a good one. However, I would be surprised if we were ever faced with those circumstances. Our problem is a more subtle and insidious one, resulting from the slovenly way in which the Government negotiated this protocol in the course of the treaty negotiations. It is clear that the charter applies in this country unless it is cut down by the terms of the protocol. The flaw of the protocol lies in its preamble, which says that the protocol is expressed to be, "““without prejudice to other obligations of the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally””." The point was not originally made by me from this Dispatch Box—one would certainly not have expected that anyway—but emerged in the course of the Committee examining the Bill in another place. It rightly pointed out that, in the context of the charter, the interpretation by the European court of measures which apply to all European Community member states, including this country, as a consequence of litigation emerging in other member states, would apply in this country even if they extended the interpretation in such a way that changed the law here. That flows from the way in which the preamble was negotiated. As the committee in another place said, it would have been so much better if, instead of the words, "““without prejudice to other obligations””," the protocol was expressed to have effect ““notwithstanding””, "““other obligations of the United Kingdom””." The fact that the Government failed to do this means that that those red lines are not watertight. I hope that the Government accept Amendment No. 28. It requires them simply to undertake a reporting obligation. The Constitution Committee’s report of 19 March rightly reflects what has been said in a number of debates in your Lordships’ House: that probably the most worrying consequence of the Treaty of Lisbon is how the scope of the European Court of Justice has widened to cover so many more competences. In effect, the only one likely to be left untouched by the European Court of Justice is that of security and international relations. In particular, the committee points out, whole tracts of justice and home affairs that previously were excluded from the jurisdiction of the court now fall within it. The Constitution Committee’s recommendation is in paragraphs 122 to 124, and I conclude my observations by quoting them. They succinctly make all the points that I would have wanted to make: "““Many of the issues we have examined in this report—including the competences of the EU, the interpretation and application of the Charter, the detailed working out of the consequences of the UK opt-outs and opt-ins (particularly in relation to the area of freedom, security and justice)—will be shaped by the European Court of Justice’s adjudications in the years to come. Insofar as the European Union is an organisation based on the rule of law, there can be no complaint that this is so, even if from time to time the developments introduced have taken Member States by surprise.""In order for Parliament to be fully informed of the European Court of Justice’s interpretation and application of the Lisbon Treaty provisions, we recommend that the Government lay before ""Parliament an annual report on their assessment of the impact of the Court’s rulings on the United Kingdom. In interpreting and applying the Charter, the European Court of Justice will increasingly refer to the case law of the European Court of Human Rights and so the relevant rulings of that court ought also to be covered in the Government’s annual report.""The provision of such an annual report would complement Parliament’s efforts in recent years to seek greater information about the operation of the United Kingdom’s courts through, for example, the requirement of the Constitutional Reform Act 2005 for the Supreme Court to make an annual report and the Lord Chief Justice’s proposed regular reports on the court system in England and Wales””." The Government, in a speech by the Leader of the House this afternoon, have expressed their intense interest in deepening the scrutiny of European matters. Why on earth should this not be seen as a further constructive contribution to that process of deepening and will the Government please accept this amendment?