European Union (Amendment) Bill

My Lords, I start with an apology to your Lordships that I was not present at the beginning of the debate and that, up to now, I have not taken any part, although I have followed the debates closely. I am afraid that my new responsibilities have kept me away from the House more than I would have wished. I also apologise to the noble Lord, Lord Neill, because I came in part way through—indeed towards the end of—his speech in which he moved the amendment. I would not rise to speak but for the fact that what I said in a particular speech has been much relied on by him and by the noble Lord, Lord Owen. I thought that I owed it to your Lordships to explain what I was trying to say, in the hope that that will help noble Lords to reach a view on the amendment. I arrived just a moment or two before I came into the Chamber and was told that the noble Lord, Lord Neill, was referring to me. Gratified, I rushed into the Chamber, only to find the noble Lord, Lord Kingsland, describing something that I had had something to do with as slovenly, so perhaps I should have stayed away. I want to say two or three things that I hope are relevant to your Lordships’ considerations. I know that today is not the occasion to go into the history of the charter in any depth. At one stage, it became my special subject, because I had the job, on behalf of this country, of negotiating the charter, before I took office in the Government. There are two critical things about the charter. First, the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions. The reason was relatively simple: by this stage, the European Union, having started off as an economic union, had gained more and more powers. How could it be, when each member state was constrained by constitutions, or by the Human Rights Act, or by the European Convention on Human Rights, that the European Union institutions—Brussels, if your Lordships will—were not so constrained? The European Court of Justice had developed some jurisprudence, but it was not clear just what were the restrictions on the European Union, and that is why the charter particularly says in one of the horizontal articles that it is directed at the institutions and only at the member states when they are implementing Union law, which is really a way of saying that the member states are acting as agents of the Union. It is not therefore a substitute for the Human Rights Act, or whatever the equivalent is in other member states. The noble Lord, Lord Owen, absolutely rightly divined one of the issues in the negotiations for the charter, which was to make sure that we did not create confusion about the different rights by having a competing set of rights alongside those which at the time we were only just bringing into force in the sense of making them justiciable in this country through the Human Rights Act; though they had been laws that affected the Government in this country since the 1950s. We also wanted to make it clear that the purpose of the charter was not to give the Union new powers. So it says in terms in the horizontal articles—which lack the poetry of any treaty but which are there specifically to make it clear what the constraints on the charter and the use of the charter are—that it does not extend the power or the mission of the Union. Against that background, the Government’s view when I was part of them, and, as it happens, my view as well, was that the charter did not create the risks and problems that some attributed to it, because there were clear rules as to its interpretation, because it was clear that it applied not to the member states in their own right but to the European Union and because it was clear that it did not extend the competence of the Union in any respect. That is why in the speech to which noble Lords have made reference, I summarised the position by saying that the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national provisions. I give way to the noble Lord.