European Union (Amendment) Bill

My Lords, it is a great privilege to follow the noble and learned Lord, Lord Slynn, who has demonstrated the strength of his convictions on this issue and his tenacity by speaking with a voice that I know is just returning. When I attempted to speak to him last week, he had no voice at all. I know the House wishes him well and hopes that his voice will return. To quote the noble Lord, Lord Kingsland, I am going to be telegraphic in my remarks because I do not need to repeat a lot that has been said and could not do so with the eloquence of my noble and learned friend Lord Goldsmith, the noble Lords, Lord Goodhart and Lord Lester, and the noble and learned Lord, Lord Slynn, with whose remarks I would like to associate myself and the Government. I am not going to try to cover what they have covered so adequately. I am also mindful of the time and that noble Lords will wish to reach a conclusion on this. Amendment No. 27 covers common foreign and security policy and the Charter of Fundamental Rights. There are very clear reasons, which noble Lords have eloquently set out, why the Government have put in place the measures that they have. In doing so, the Government wished to reassure this House, another place and beyond, and to make clear what does and does not apply. We have made it clear that the European Court of Justice does not have jurisdiction over common foreign and security policy. There are two tiny exceptions to that, which I laid out fully in Committee, about policing the boundary between the two. They are that under the new treaty, the court has to protect the distinct character of the common foreign and security policy against encroachment from non-common foreign and security policy provisions, as well as vice versa, and the sanctions that apply to individuals that could come about under this. Beyond that, the European Court of Justice does not have jurisdiction in the way about which noble Lords have expressed concern. The noble Lord, Lord Kingsland, was worried about the preamble, "““without prejudice to other obligations””" in the EU treaty. That is a misunderstanding about how the protocol works. Any judgment given on the basis of the charter cannot extend the ability of the European Court of Justice to affect the law of the United Kingdom. If the European Court of Justice did the completely unthinkable—we are back to the belt, braces and suspension in midair point—and ignored all the other safeguards in the charter and interpreted European Union law for other member states—a concern that was raised—using the charter to create new rights, it cannot affect our law. That is clear from Article 1.1 of the protocol, which states: "““The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms””." That is in the protocol, and the protocol stands. The noble Lord, Lord Owen, previously raised the issue of the president of the European Council and the fear of seeping through the president into a jurisdiction. The European Court of Justice has jurisdiction over measures of the European Council with legal effects. It does not have jurisdiction over the political discussions or conclusions of the Council. Were the European Council to adopt legal measures relating to common foreign and security policies, which are extremely rare, they are clearly covered by what I describe as the ““carve out”” under Article 275. They would relate to the CFSP provisions, and so have jurisdiction on the president. If noble Lords refer to the treaty and look at what has been said, it is clear that there is no need for any additional provision. My noble and learned friend has gone through the issues around the charter in great detail. I am not going to try to set them out again because noble Lords have listened very intently. My noble and learned friend referred to the interpretation and application of the treaty, but he did not have the reference in front of him. It states: "““The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law””." That was the particular point to which my noble and learned friend was referring. I am not going to go into all the details about what has been covered on the charter and the safeguards that have been put in place, not least due to the incredible work of my noble and learned friend in negotiating that position. Suffice it to say that the issue that underpins Amendment No. 27 is the primacy of European Union law and the role of the European Court of Justice. If you sign up to a club—which, in a sense, we have done—with 27 member states, you also sign up to the referees that you put in place. The European Court of Justice is in a sense a referee. That is its function. Noble Lords may not like it and may wish that it did not exist, but that is what it does. Its work is important in making sure that the implementation and the work of the European Union is consistent. We have benefited from that. Noble Lords can point to many cases where the European Court of Justice has demonstrated that to our benefit. That is what underpins this amendment and is why the Government will not accept it. I shall turn briefly to Amendment No. 28. So far, we have asked for 23 reports during our deliberations. I am mindful of not bombarding noble Lords with further information. In speaking to this amendment, the noble Lord, Lord Kingsland, referred to the Constitution Committee report, and I refer to the response to that report that the Government have already published. We have already committed to ensuring that a copy of the European Court of Justice’s annual report is deposited in the Libraries of your Lordships' House and another place. We have also committed to providing explanatory memoranda on all judgments during the preceding year in which we were a party, where we intervened or where we submitted observations. Just to make sure that noble Lords understand the context of that, it will be considerable number of cases. Of the cases lodged with European Court of Justice in 2007, we intervened or submitted observations in just over 50, and of cases lodged with the Court of First Instance, we intervened in just under 20 cases. We believe that by putting in the Libraries the European Court of Justice’s annual report and memoranda on everything where the UK has had an interest, we will fulfil what was behind the Constitution Committee’s requirement and request to us. That is a much better option than yet another amendment that takes us into another report. I hope that the noble Lord, Lord Kingsland, will agree. We already work closely with the Joint Committee on Human Rights. We think that that is the best way to continue our work rather than setting up a parallel process replicating what is already done. That is all I am going to say. Everything that could have been said in this debate has very usefully been said. I am extremely grateful to noble Lords who have spoken. I hope the noble Lord will withdraw his amendment.