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Jon Trickett (Hemsworth) (Lab): I am grateful to my right hon. Friend for taking so many interventions. I share his pleasure about the directive he mentioned on workers’ rights, but may I draw his attention to title IV of the charter, for which there is the special provision that he has referred to? Will he explain why we have decided that title IV will not create any new justiciable rights that are applicable to the United Kingdom? Finally, will he say whether it is the UK’s intention to secure a majority for the agency workers directive?
Mr. Straw: That would put the issue beyond doubt. The Under-Secretary of State for Justice, my hon. Friend the Member for Lewisham, East (Bridget Prentice), will be able to go into this matter in more detail when we come to the winding-up speeches.
Mr. Cash: Will the Secretary of State give way?
Mr. Straw: No; I am going to finish, and I have already given way to the hon. Gentleman.
To conclude my previous point, as my hon. Friend the Member for Hemsworth (Jon Trickett) knows, the issue of agency workers has been the subject of considerable discussion in this country and between us and other member states. That can be, and will be—there is no reason why it should not be—resolved within existing treaty arrangements, notwithstanding the fact that we do not currently have the benefit of the treaty including the charter.
Mr. Straw: I will not give way again, as I wish to conclude—I am sorry to have to disappoint the House by saying that my speech will shortly come to an end.
I firmly believe, as do the Government, that Britain’s best interests are served by working with Europe and by being closely involved in the Union, but on our terms. The negotiations that led to the Lisbon treaty have achieved that. British interests are strengthened through a series of opt-ins and opt-outs, and in the matter of the charter, not least through the binding protocol. I hope that there is cross-party consensus that there are overwhelming benefits to the British people as a result of our honouring international commitments regarding human rights. Even those on the Opposition Front Bench, in spite of the endless inconsistencies and contradictions of their policy in this area, seem now to have realised that it would be folly of the gravest kind to do what many Opposition Members were toying with doing not long ago: withdrawing from the European convention on human rights. I welcome at least that late change.
I also issue a warning, however. I fear that those who seek to attack the treaty by attacking its human rights provisions are at risk of doing great harm to the interests of the British people, as well as being injurious to our international reputation. We brought rights home to make it easier for our citizens to access their rights, and to make human rights considerations part and parcel of policy making. It is now time that we reinforce that protection across the entire EU regardless of where British citizens happen to be. We can do that through
the Lisbon treaty—through the human rights provisions linked to it and the extensive safeguards that we have secured—and I commend the motion to the House.
4.33 pm
Mr. David Lidington (Aylesbury) (Con): I beg to move, to leave out from “House” to end and add instead thereof:
“disapproves of the Government’s policy towards the Treaty of Lisbon in respect of human rights because of its incoherence and inconsistency on the status of the Charter of Fundamental Rights in the United Kingdom; notes that after the Intergovernmental Conference was agreed the previous Prime Minister told the House that “it is absolutely clear that we have an opt-out from both the Charter and judicial and home affairs”; notes that the Minister for Europe told the House when debating the Treaty of Lisbon that “the fact is that the United Kingdom has neither sought nor achieved an opt-out on the Charter of Fundamental Rights”; and calls on the Government to adopt a clear and consistent policy whose merits Parliament may then judge.”
I am delighted that the Secretary of State opened the debate on behalf of the Government. I congratulate him on his speech, which was a masterpiece of obfuscation. Opposition Members admire the way in which he shimmies around any challenge to do with the substance of the charter of fundamental rights and the content of the treaty. To develop the image of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), we see the right hon. Gentleman as the Kyran Bracken of the Government Front Bench. It is not just his experience as Foreign Secretary that commends him to us. Conservative Members’ regard for the right hon. Gentleman is only enhanced by knowing that it was he who bounced the former Prime Minister into promising a referendum on the European constitution. After the French and Dutch votes he pledged that
“there will be no proposals made by this Government that seek to bring in this constitutional treaty, or elements of it, by the back door.”—[ Official Report, 6 June 2005; Vol. 434, c. 1000.]
Mr. MacShane: Let us focus on a pledge and a promise made by his party leader. Is it Conservative policy to withdraw from the social chapter if they form a Government?
Mr. Lidington: The right hon. Gentleman knows what my right hon. Friend the Leader of the Opposition said about seeking to restore national Parliaments’ control of employment measures. He will have to wait with bated breath for the detailed presentation of Conservative policy, but I can promise him that his appetite will be satisfied well before the next election. [Interruption.] I am always impressed by the way in which Labour Members become increasingly excited by the prospect of what the future Conservative Government will do.
The right hon. Member for Rotherham (Mr. MacShane) tried to come to the Lord Chancellor’s rescue, but Conservative Members know what the Lord Chancellor said about his commitments on consulting the people, we know what he really thinks and we still cherish the hope, even at this late stage, that he will be prepared to step up to say what he privately believes about the need to consult the people.
There is a sense of poetic justice in our debating human rights today, because yesterday’s events and the treatment meted out to the right hon. Member for Birkenhead (Mr. Field), and the hon. Members for
Manchester, Blackley (Graham Stringer), for Birmingham, Edgbaston (Ms Stuart) and for Vauxhall (Kate Hoey) remind us that the rights to free speech, due process and a fair trial need to be defended today with vigilance and determination. The Prime Minister must have set some new standard in ordering the persecution of four Members of Parliament for seeking to deliver something that not only they but he had promised the British people at the previous general election.
Let me deal with the motion, the treaty’s content and its human rights elements. Three key elements of the treaty should concern us this afternoon. Paragraph 2 of article 6 provides for the European Union to accede to the European convention on human rights, but the Secretary of State did not give us a likely timetable for that. It might help if the Minister for Europe’s response threw more light on that proposed time scale and on whether negotiating problems must still be overcome before accession.
The Secretary of State assured my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) that in the event of a clash of judgments between the two courts, the European Court of Human Rights’ decision would take precedence, but I can find nothing in the treaty text to support the Government’s assertion. Ministers have a duty to explain in much greater detail exactly how such a conflict would be reconciled.
Mr. Cash: Perhaps I may assist my hon. Friend. The Secretary of State is wholly wrong in his assertion, because article 6 clearly states:
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”
Therefore, the European Court of Justice would interpret the matter and would therefore take precedence.
Mr. Lidington: In the absence of any detailed argument to the contrary, I find my hon. Friend’s case persuasive. This is not an academic point, because such a clash actually happened when the ECJ ruled that the treaties did not permit Britain to allow Gibraltarians to vote in European parliamentary elections and the European Court of Human Rights declared that Britain’s failure to give such votes to Gibraltarians left this country in breach of the European convention on human rights.
Mr. Redwood: Does my hon. Friend agree that the major fallacy in the Secretary of State’s argument is that all these rights, if we like them, can be granted by this Parliament and interpreted and enforced through our courts, with the advantage that if we do not like them as they evolve we can amend them here without needing the agreement of 26 other member states?
Mr. Lidington: Throughout his speech, the Secretary of State carefully sidestepped the challenge posed by my right hon. Friend.
Ms Patricia Hewitt (Leicester, West) (Lab):
Surely the point is that the European convention on human rights provides explicitly that the European Court of
Human Rights will interpret rights under the convention. Thus, in acceding to the European convention on human rights, the European Union will be bound not only by the principles of the convention, but by the decision of the Court in interpreting the convention. That is the point, and that is why the hon. Member for Stone (Mr. Cash) is wrong.
Mr. Lidington: The problem with the right hon. Lady’s assertion is that we do not yet know what the text of any accession agreement between the EU and the ECHR will be. The language that my hon. Friend the Member for Stone (Mr. Cash) quoted indicates that the European treaties already contain provisions that tilt the argument in the opposite direction.
The Government have done a somersault on children’s rights. In the early stages, the right hon. Member for Neath (Mr. Hain) tried hard to delete any mention of children’s rights from the text, on the grounds that its inclusion would be an extension of EU competence. Now, Ministers hail the inclusion of a reference to children’s rights as some negotiating triumph. The Government still refuse to come clean over whether the words do matter and they made a concession of some significance during negotiations, or whether they believe that the reference is innocuous and changes nothing about EU competence. In the latter case, it hardly merits the fanfares that they have been busy blowing.
The Government’s failure to be straight with Parliament and the British people on that point encapsulates what is wrong with their approach to this treaty and how, in particular, they have dealt with the impact of the charter of fundamental rights—the subject that will, rightly, be the focus of most of today’s debate, the prime purpose of which should be to probe the Government on their answers to two questions. First, does the fact that the Lisbon treaty gives legal force to the charter of fundamental rights transfer powers, either actually or potentially, from national Parliaments and Governments to the institutions of the Union, and especially to the Court of Justice? Secondly, if the treaty does have such an effect, do the words of the protocol that the Government have secured provide the safeguards for this Parliament that Ministers claim?
We know for certain that the Government fought hard to resist any incorporation of the charter in the treaty. In fact, the notes used by the right hon. Member for Neath at the time of the convention said that the objective of the British Government was to ensure that the charter was relegated from the text of the treaty into “only a protocol”. The use of the word “only” in that context should lead us to question the significance of the protocol to which the Government attach such importance today.
The Government rely on three basic arguments to defend their position.
Mr. Davey: The hon. Gentleman says that the debate has to answer the question of whether the charter of fundamental rights extends the competences of the Union. Has he read article 6.1? It states:
“The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.”
Mr. Lidington: Yes. I want to deal with exactly that point in greater detail.
The Government have relied on three arguments to defend their position. First, they claim that the charter is nothing more than a declaratory statement and that it merely codifies rights that already exist. The Foreign Secretary asserted that as recently as 18 October last year, when he wrote to the Chairman of the European Scrutiny Committee to say that the charter
“only records existing rights; it does not create any new rights”.
Earlier this afternoon, the Secretary of State for Justice said that the charter describes rights that already exist.
Secondly, like the hon. Member for Kingston and Surbiton (Mr. Davey), the Government argue that the words of article 6 of the consolidated treaty, together with the so-called horizontal articles of the charter, protect all member states—not only the UK or Poland—from the creation of new rights by the institutions of the Union.
Thirdly, Ministers claim that the protocol to the treaty in respect of this country and Poland alone makes it impossible for decisions of the European Court or the Commission to overturn the definitions of rights determined by our domestic law. The trouble is that when one starts to examine those claims in any detail, one realises that the safeguards appear less than watertight, as the European Scrutiny Committee found in its most recent report.
One also has to challenge the Government on a point of basic principle. If, as Ministers say, all the rights that are included in the charter already exist in both domestic law and the European convention on human rights, what is the purpose of the charter of fundamental rights being judicable by the European Court of Justice, too?
The charter sets out a number of rights that would, as a consequence of Lisbon, become for the first time rights that are embodied in EU law and judicable by the ECJ, even if they are not new rights. Most obviously, the recreation in the Lisbon treaty of the EU as a unitary legal entity means that subjects such as policing and criminal justice laws passed after Lisbon could be interpreted by the ECJ with the Court applying the rights and principles set out in the charter.
The treaty goes beyond the EU simply signing up to the European convention on human rights. The charter also includes a number of articles derived from other international agreements that have been entered into bilaterally by one or more of the member states. Those rights, too, exist in those member states but they have not hitherto been part of EU law and subject to the jurisdiction of the ECJ. In practice, when we hear the Government’s arguments and look at what Ministers are doing and saying, we find that they are not behaving as though they believe that no new rights are being created. If there were no new rights and no new interpretations permitted of existing rights, why is there a need for the protocol at all?
The same applies to the argument put by the hon. Member for Kingston and Surbiton. If article 6, and in particular paragraphs 1 and 2, do not under any circumstances permit the extension of EU competence or the interpretation by the court of what is meant by EU competence, it is difficult to see the justification for the protocol in which the Government place such store.
Mr. Davey: May I refer the hon. Gentleman to an article by Professor Dashwood? He asked that same question:
“What then is the purpose of the Charter Protocol?”
“Simply, it would appear, to make assurance doubly sure for those in the United Kingdom that remain determined to see the charter as a ravening beast, when it is really a paper tiger.”
Mr. Lidington: I think that the learned professor’s arguments do not match the arguments advanced by the Government to justify the contradiction in their approach. The hon. Gentleman argues that everything is safe but, if that is so, there is no need for the protocol that the Government have negotiated.
The Government point to paragraph 4 of the charter’s article 112. It requires that rights must be “interpreted in harmony” with the
“constitutional traditions common to the Member States.”
Ministers have argued that the ECJ will take clear account of what happens in individual member states before it gives a ruling. The problem, once again, is that the decision about whether a particular interpretation of rights is “in harmony” with national traditions will be made not by national Governments or Parliaments but by the ECJ.
The ECJ will not be under a duty to look separately at each country’s national traditions. Instead, the wording of the article makes it explicit that it will look at the traditions common to all member states. Where national traditions differ, ECJ judges will decide what balance they wish to strike. The president of the ECJ could not have made that clearer when he said that
“common constitutional traditions do not form a direct source of Community law and the Court of Justice is not bound by them”.
The trouble with the Government’s approach generally is that they consistently understate the importance of the debate about the ECJ’s developing jurisprudence, which introduces a dynamic into a system that the Government seem to regard as frozen, now and for all time.
Let us look at the protocol that Ministers argue will stop the Court overturning the human rights provisions in our national law. The Government have placed particular emphasis on the fact that the UK has an exemption from the normal rules governing labour law. The Opposition and some Labour Members may have differences over policy, but we share a concern to get greater certainty about what is being proposed.
Title IV—the so-called solidarity title—deals with employment and industrial relations, but it raises as many questions as it answers. The protocol says that it is needed for the avoidance of doubt, but presumably such doubts continue to exist about the Court’s power to interpret and overrule domestic law as that touches on the other 42 articles of the charter of fundamental rights. If there is not any doubt about that—if the UK’s position is safeguarded—why is paragraph 1.2 needed at all?
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