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The fundamental question for the Government goes deeper. Let us assume that Ministers are right to say that the protocol will stop the ECJ from striking down UK laws directly. That still leaves the question of how our law will be changed over time by ECJ decisions on
rights in countries that are not subject to that protocol. The Government have produced no plausible argument that we can avoid our law being changed as a result of decisions about the charter being made in respect of other countries.
The Opposition have not invented that problem. The European Scrutiny Committee focused on it very strongly in its third report of the present Session, which was a follow-up report on the intergovernmental conference.
Mr. Gauke: Was my hon. Friend struck—as I was—by the fact that when our right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind) put that argument to the Lord Chancellor during the right hon. Gentleman’s speech he merely asserted that it was not the case and then moved the subject rapidly on?
Mr. Lidington: I thought that our right hon. and learned Friend put the point well and that the Lord Chancellor, with customary skill, avoided providing a persuasive answer, just as the Government have been unable, as far as I can see, to provide a persuasive answer to the comments of the European Scrutiny Committee.
Paragraph 38 of the Committee’s report said plainly:
“If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK’s other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation.”
In paragraph 40, the Committee said that
“we doubt if it is possible to guarantee that it”—
“will not be developed and amplified by the ECJ. We equally doubt if it is possible to guarantee that the ECJ will not draw on the Charter as a new source for interpreting measures of Union law such as Directives”.
In paragraph 41, the Committee concluded:
“If the ECJ does interpret a measure of Union law in this way, we believe the resulting interpretation would be binding in the UK, because of the UK’s treaty obligations, notably the duty of sincere co-operation under Article 4(3) EU. These obligations are not excluded or restricted by the Protocol. On the contrary, and as the recitals make clear, the Protocol is subject to those obligations.”
Sir Malcolm Rifkind: Does my hon. Friend agree that if the Government had been more competent in negotiating the terms of the protocol the problem would not have arisen? It would have been easy to say that the protocol should have effect regardless of other treaties or other EU law. In that way the protocol would have been watertight.
Mr. Lidington: My right hon. and learned Friend’s remarks are spot-on. As he knows, other protocols appended to European Union treaties include precisely the sort of clause he has in mind.
Mr. MacShane: In fact, what the right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind) proposes, and I think Conservative Front Benchers accept, is that Britain should have a unilateral right to take no notice of ECJ rulings. On that basis, the single market collapses.
Mr. Lidington: That is not what my right hon. and learned Friend the Member for Kensington and Chelsea was advocating. The right hon. Member for Rotherham (Mr. MacShane) ignores the fact that a clause that such and such a protocol should apply notwithstanding other treaty provisions or European Court of Justice judgments is included in a couple of protocols already agreed and appended to European Union treaties, so there is a precedent.
Mr. Davey: We confirm that point in other areas of EU law, which are not always applied uniformly; for example, in other treaties the UK has opt-outs or opt-ins on protocols and when the ECJ rules on those areas of law it is not able to apply its rulings uniformly across the EU. Does the hon. Gentleman accept that point?
Mr. Lidington: The hon. Gentleman has still not grasped the fact that the Court’s indirect application to UK law of decisions based on the charter will circumvent any opt-out of the sort he described.
Mr. Redwood: Is there not a simpler point? The European Court of Justice is a federalist, activist Court, which over time always makes judgments in favour of more European power, so why take the risk? We could opt out of the whole provision and not include it in the treaty.
Mr. Lidington: It is not only my right hon. Friend who says that Britain should opt out of the charter of fundamental rights; it was originally the position of the Labour Government, but they have subsequently abandoned it. If we further consider the likely consequences of a European Court of Justice decision deriving from the application of charter rights, we can see that irrespective of the protocol, any company that operates in more than one EU member state will change its practices across the EU, even in the United Kingdom or Poland, once the ECJ has given a judgment on what has gone on in one particular country.
Mr. Harper: Perhaps I can help my hon. Friend and the hon. Member for Kingston and Surbiton (Mr. Davey), whose colleague, Liberal Democrat MEP Andrew Duff, has said in a document called “A primer on the EU’s reform treaty”:
“Regardless of the UK’s exclusion clause, the EU courts will be bound to develop jurisprudence in fundamental rights matters which steadily evolve into general principles of EU law which all member states must respect.”
That makes it clear that what my hon. Friend the Member for Aylesbury (Mr. Lidington) says is in danger of happening is exactly what will happen. Perhaps the hon. Member for Kingston and Surbiton ought to look at what his colleagues elsewhere are saying.
Mr. Lidington: My hon. Friend is more optimistic than I am; I have long given up hoping or expecting to hear a consistent message from members of the Liberal Democrat party.
Rob Marris:
I am grateful to the hon. Gentleman for giving way; he is being very generous. He is eliding two things. The European Court of Justice may make a decision on an area in which the United Kingdom has
rights, and that would affect us, but it also may make decisions about areas on which we do not have national rights, and that would not affect us. That is set out in paragraph 2 of article 1 of the protocol, which says:
“In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”
If an ECJ decision is on an area where we have not provided national rights, the situation is different.
Mr. Lidington: Unusually, the hon. Gentleman has failed to understand the thrust of the argument put not only by me but by the European Scrutiny Committee in its report: that even if we give the Government the benefit of the doubt and say that the protocol and the language of the treaty protect the United Kingdom from the imposition of ECJ decisions that directly override our national law, we are still left with the issue of what happens when the ECJ takes a decision in respect of a country other than the United Kingdom or Poland, and that decision has consequences for the way in which we in the United Kingdom conduct our affairs.
Mr. Clappison: On that point, does my hon. Friend share the European Scrutiny Committee’s concern about the preamble to the protocol? It reaffirms
“that this Protocol is without prejudice to other obligations devolving upon...the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally”.
The Committee was concerned that that meant just what has been suggested—that the United Kingdom’s other obligations under European law include ensuring even application throughout the European Union, including in the United Kingdom, of ECJ judgments that relate to other member states where the charter does have effect. That would give effect—
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. Interventions are getting quite long, and I have to keep my eye on the time as this is a time-restricted debate.
Mr. Lidington: I shall try to make some progress and bring my remarks to a close. I am grateful to my hon. Friend the Member for Hertsmere (Mr. Clappison) for making an important point and further drawing out that element of the European Scrutiny Committee’s report.
One must bear it in mind that any new legislation initiated by the European Commission, and affecting the entire European Union, is certain to follow the decisions made by the European Court of Justice on specific cases. Even if the protocol means that the United Kingdom is exempt for a time, once a decision has been made in respect of, say, Austria or Romania, subsequent legislation from the Commission on that topic will follow not the position in the United Kingdom but the situation brought about by the ECJ judgment. That legislation will then become binding on the United Kingdom.
The only way in which the protocol could insulate the United Kingdom from the impact of Court decisions based on the charter would be either for the protocol to have included the kind of clause described by my right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind), or for the Court of Justice to permit the development of two separate systems of jurisprudence within the European Union—one for the United Kingdom and Poland, and the other for all the other member states. I see nothing in the charter, nothing in the treaty and nothing at all in the traditions of the European Court of Justice that makes that seem remotely likely.
I fear that once again on this issue, as on others in respect of Lisbon, the Government have been trying to pull the wool over our eyes. We have had from successive Ministers a series of different positions on the charter of fundamental rights. We first had the then Minister for Europe, the right hon. Member for Leicester, East (Keith Vaz), saying that it was of no more significance than The Beano. Then, as recently as last June, the former Prime Minister declared that
“we will not accept a treaty that allows the Charter of Fundamental Rights to change UK law in any way.”
A month later in their White Paper the Government had slithered into a position where they were committed simply to ensure
“that our existing labour and social legislation remains intact”.
Back in June, Tony Blair was insisting:
“It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs”—[ Official Report, 25 June 2007; Vol. 462, c. 37.]
and just weeks after that, the current Minister for Europe told the Scrutiny Committee:
“The UK specific protocol which the UK secured is not an ‘opt out’ from the Charter. Rather, the protocol clarifies the effect that the Charter will have in the UK.”
By January this year the Minister was saying that
“the United Kingdom has neither sought nor achieved an opt-out from the charter of fundamental rights”—[ Official Report, 28 January 2008; Vol. 471, c. 34.]—
a fairly shameless rewriting of history, even by the standards of the present Government.
The British people deserved their Government to speak to them on these issues with both clarity and candour. Instead, again and again, we have been subjected to spin. Nothing that the Secretary of State has said this afternoon has persuaded me that we can have confidence in the Government’s assurances and promises any more than we were able to believe those that they have repeated to Parliament and the public over the past few years. For that reason, I ask the House to support the Opposition amendment tonight.
Mr. Deputy Speaker: Order. Now might be the moment for me to remind hon. Members that Mr. Speaker has placed a limit of 12 minutes on Back-Bench speeches, which operates from this moment.
5.7 pm
Mr. Andrew Dismore (Hendon) (Lab):
We have had a great deal of discussion of the charter of fundamental rights. I am not sure that I can add substantially to it,
other than to say that I believe it brings existing rights together and makes them more visible, as the charter says, drawing them from a variety of different sources—civil, political, economic and social.
Although we have the protocol, there is nothing in the charter itself that we could realistically object to. Indeed, it would do a great deal to strengthen our rights in this country, and I would like to see it in force in the United Kingdom, even though the protocol ensures that it does not apply. As it is drawn, the charter applies only in relation to European Union law or action taken under the treaty. Although the charter is made legally binding by the treaty, that is only in the context of European law. It contains not just rights but aspirational principles.
The Fundamental Rights Agency has the job of monitoring compliance with the charter. The agency emerged in 2003 under the Italian presidency and was drawn from the existing Monitoring Centre on Racism and Xenophobia. Much of its residual experience is drawn from that and that is reflected in the future work pattern of the Fundamental Rights Agency. The agency was negotiated under the UK presidency as a first-pillar agency under article 308 of the Nice treaty. Its duty is to enforce the charter of fundamental rights and, although other human rights instruments could inform its work, the FRA cannot actually enforce them. Its job is to monitor member states and EU institutions. It is also its job to monitor accession states but only after accession has been completed, which is a problem. I may be wrong, but I do not think that the charter and the FRA are taken into account during the negotiations for accession. This happens only after an accession agreement has been signed. That reflects a gap in the effectiveness of the agency and the charter. A much stronger lever could have been provided in the accession processes for Bulgaria and Romania, for example, where significant human rights issues needed to be addressed before the accession process was completed. That is doubly so in the case of Turkey where significant human rights issues have to be addressed before the accession process is completed.
There has been much debate about why we should have the charter—and, indeed, the FRA—when we already have the European convention on human rights and the Council of Europe, but until the EU accedes to the European convention, however, there is no monitoring of EU institutions for human rights compliance without the FRA. The agency can ultimately look at the gap in performance between the EU institutions such as the Commission and the Parliament.
Mr. Grieve: The hon. Gentleman is making an important point about the need for the European Union to adhere to the European convention on human rights, and the fact that it has not been unknown for the Commission, for example, to violate human rights through its activities. Does he share my anxiety that, although it is implicit in the treaty that accession to the ECHR will take place, the mechanism and the precise text for achieving that are not before us? Such information could give us the kind of reassurance that the Lord Chancellor described when he said that the mechanism would be such that the ECHR and the Court of Human Rights would be supreme over the European Court of Justice in this area.
Mr. Dismore: I have some concerns about human rights principles, but that is not one of them. I hope to develop that argument later in my speech.
At present, human rights are subject to monitoring by the Council of Europe, United Nations treaty bodies, non-governmental organisations and national institutions such as my own Committee, the Joint Committee on Human Rights. There is a need, however, to translate that monitoring into remedial action, if it is required, within the EU framework. The agency could fulfil that responsibility.
Mr. Cash: In respect of the potential conflict between the two jurisdictions, the hon. Gentleman might recall that the July 2007 White Paper states:
“There are complex legal issues involved in EU accession to the ECHR. These problems would have to be resolved before the Government could support it.”
We have no evidence that those matters have been resolved.
Mr. Dismore: I will be coming to the question of accession later in my speech.
At the moment, I am talking about the Fundamental Rights Agency, which has an obligation to complement the Council of Europe so as to avoid duplication. The Council of Europe’s responsibility is to set the standards for human rights—such as those that we see in the convention—to monitor compliance with those standards and to provide a judicial function through the European Court. On the other hand, the European Union has a legislative function and a political function and much better enforcement capabilities. It seems to me, therefore, that the agency’s job should be to develop recommendations from the Council of Europe and to implement them in such a way as to ensure that standards are met at EU level. I am pleased that a memorandum of understanding was signed by the EU and the Council of Europe in May last year.
I have some doubts about the independence of the FRA, however, and whether it complies with the Paris principles. According to those principles, it should be independent, but, given the way in which the regulations that drew it up were framed, I doubt whether they fully comply with those requirements. Its work is to gather information, analysis and reports and to take an advisory role. It does not have investigative powers or powers of scrutiny, which is a problem. That is a major gap in the agency’s work.
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