European Union (Amendment) Bill

My Lords, I support both amendments but I hope that the Official Opposition will not push their Amendment No. 28 to the vote but will support a vote on the extremely interesting and important amendment tabled by the noble Lords, Lord Neill of Bladen and Lord Waddington. I notice that the former Attorney-General is in his place. I had not before read the very interesting speech that he made on 15 January 2008. In dealing with the charter, he summed up the Government’s position. I totally agree with him but his words are very important. He said: "““The aim was not to deny the importance of fundamental rights, but precisely the opposite: to prevent them being confused or diluted or the status of the European Convention on Human Rights and of the Strasbourg Court downgraded by the introduction of a rival set of rights””." I believe that is a serious and valid objective. It has been a very important decision to make the European Court of Human Rights charter justiciable in this House. I would have liked to have done it in 1978 when an attempt was made inside the Labour Cabinet. Despite a lot of alarmist predictions, it has withstood pretty well the passage of time. It is rather selfish of us to deny those new states in the European Community which may not have been involved in the European Convention on Human Rights for very long, or not at all in rather more cases, their own home-grown fundamental rights. I do not cower from the fact of introducing fundamental human rights but I think the points made by the noble Lord, Lord Neill of Bladen, are extremely important. We know that there are people who want to replace the European Convention on Human Rights with the charter of fundamental rights and there are people who want to expand the wording. We therefore do need safeguards. The interpretation put on the speech of the noble and learned Lord, Lord Goldsmith, is a fair one. I am sure he will leap to his feet if he thinks there has been any misinterpretation of his words. He made it perfectly clear that he thought there would be no change in the protocol, a point which was also made by the spokesman for the Official Opposition. This is not good enough. We have an opportunity here to make sure that there are no changes. We know that there are serious people out there who have anxieties about this treaty. I would like to take up a little more time of the House on the other aspect of this amendment that deals with the common foreign and security policy. Here I call in aid a very interesting memorandum by Professor Takis Tridimas of Queen Mary, University of London, to the Sixth Report on the European Union (Amendment) Bill of the House of Lords Constitution Committee. In that evidence he says: "““Under the Lisbon Treaty, the Court’s jurisdiction continues to be excluded from matters falling under the Common Foreign and Security Policy””." We have heard that very often in this debate. "““Such exclusion applies both with respect to the provisions relating to the common foreign and security policy and ‘with respect to acts adopted on the basis of these provisions’. It is not clear whether this provision excludes jurisdiction only in relation to acts adopted wholly under the CFSP or also in relation to acts adopted under a dual legal basis ie based both on the CFSP and another Union policy, for example, freedom, security and justice””." In my view it is quite likely that that is the area where we must focus our attention. He goes on to say: "““Such dual basis may be used, for example, for anti-terrorist measures. Since restrictions on the right to judicial protection are to be interpreted restrictively, it is more likely that the ECJ will be willing to review measures based partly on CFSP””." There is again here a potential loophole and the amendment tabled by the noble Lord, Lord Neill of Bladen, closes that loophole as far as it is possible to do so. I have already pointed out that the other loophole is that the activities of the new President of the European Council will come under the jurisdiction of the European Court of Justice. Since the bulk of the activity of the President of the European Council deals with common foreign and security policy, particularly in areas where it may link into terrorism, it is in that area that some of us feel that there needs to be some restriction on the authority and the legality and its follow-through for the president of the Council. This new post is unfettered other than by the Council Members. If the European Court of Justice was to use this as another lever, that possibility would be closed and limited by Amendment No. 27. I hope the House takes the opportunity of having this on the statute book. As far as the Government are concerned, it seems to me the very minimum of a belts-and-braces safeguard.