European Union (Amendment) Bill

My Lords, some noble Lords may find arguments by lawyers in this House less interesting than others. I do not wish to prolong this debate more than I need to, and I do not need to very much because I agree with everything that has been said by the noble and learned Lord, Lord Goldsmith, and by my noble friend Lord Goodhart. However, I would like to draw the House’s attention to the fact that the Select Committee on the European Union sub-committee on which the noble Lord, Lord Blackwell, and I served looked thoroughly at each provision of the treaty of Lisbon but especially at the charter of fundamental rights. In paragraphs 12.40 to 12.41 and paragraph 12.44 of the report, we summarised our conclusions. First, we said that the charter does not confer new rights; the rights referred to are already contained in the international human rights treaties by which all member states of the European Union are bound. Secondly, we found that we could discern no threat to the public interest of the United Kingdom or its citizens in anything contained in the charter, given that it is there to shield, as the noble and learned Lord, Lord Goldsmith, has indicated, our citizens—the peoples of Europe—against the abuse of power by the European institutions. It is therefore to protect our citizens against abuses of power and does nothing more than is already binding on member states, as I have said. Thirdly, we looked at the protocol and the terms of the treaty itself. We concluded that it is indeed a question of belt and braces. My own view is that either the braces or the belt were necessary only to give reassurance to noble Lords, such as the noble Lord, Lord Neill of Bladen, who for years has made plain his opposition to the European court’s activism, as he sees it. I do not believe that it was strictly necessary, but I am absolutely clear that the way in which it has been negotiated—by a most unslovenly former Attorney-General—was to produce a result that clearly, beyond any argument, prevents the charter ““applying to the United Kingdom””, to use the words of the noble Lord, Lord Kingsland. I do not know what he meant by that. It does not apply to the United Kingdom in the way in which the European Convention on Human Rights and the European Court of Human Rights apply to the United Kingdom. In Amendment No. 27, the court can indeed, "““find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with””" human rights in the Strasbourg court of human rights. It does so with the highest aspirations of Winston Churchill, Harold Macmillan and the former head of my chambers, Sir John Foster, at a time when the Conservative Party was the European party within our political system. That is what it does. Its judgments are binding and our judges have a duty to apply the convention rights directly as a result of the Human Rights Act. I cannot understand why Amendments Nos. 27 and 28 propose complicated provisions that in the first place violate the supremacy of European Union law for the reasons given by my noble friend Lord Goodhart. They seek to place UK courts above the European Court of Justice in a way that is unlawful under European law. Moreover, I do not understand this sudden concern about a possible overreach if the belt and braces do not work. No one has produced even a hypothetical example. The example of the German Constitutional Court is simply an example of a written constitution that states basic rights and freedoms in a way that need to be protected under the German system which had to be reconciled with the paramount law of the European Union. The German Constitutional Court, in its discussions with the European Court of Human Rights, managed to reach a sensible compromise on that question. The fact that there is a now a pending case about all this in Germany is nothing to the point. There has not been a German case I am aware of that would suggest even remotely that the charter could threaten the public interest of this country or its inhabitants. As I say, we are to take a decision based on evidence. What was our sub-committee doing week after week? It was taking evidence, going through the charter, the red lines and horizontal effect, in order to see whether the view of the noble and learned Lord, Lord Goldsmith, was correct. We came to the view that it was completely correct and that he had reached the right conclusion. These amendments are not appropriate or necessary.