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The other crucial point that has not been mentioned today is that the European Court’s position with regard to the charter of fundamental rights is quite different from its position until now. Until now its role has been one of interpreting directives and specific pieces of legislation covering relatively narrow areas. The very point of the fundamental charter is that those rights are expressed in very broad terms, and that is exactly how judge-made law can expand in a dynamic fashion. We have seen in the US how the Supreme Court has used provisions that were put in the constitution more than 200 years ago on cruel and unusual punishment to deal with the issue of capital punishment. The right to bear arms is also used to justify the right of Americans
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to carry guns in the most extraordinary circumstances. Those dramatic developments of law have an impact on ordinary people, and Parliaments and other accountable bodies have not been involved. Just as the US Supreme Court has that power, so the European Court would have a comparable power with the charter of fundamental rights.

The situation is worse than with qualified majority voting because even when we or another Government are outvoted in the Council of Ministers, and have to accept a judgment that we do not like, QMV is normally—although not always—applied at the end of a long negotiation in which compromises are invariably made to assist the minority Government or Governments to live with the outcome. I have taken part in such Council of Ministers discussions as part of both the minority and the majority sides. Strenuous efforts are made to help the Governments who are being outvoted to live with it and sell it to their electorates. It does not always work, but the effort is made. When laws are made by the European Court, there are no negotiations, compromises or attempt to recognise the political realities. The rules are simply pronounced in the judgment and Governments have to like it or lump it.

Mr. Cash: I accept my right hon. and learned Friend’s argument about the la carte Europe, although I suspect that his argument is like the curate’s egg. Does he accept that although he is right in his criticisms of the way in which the European Court could function—as the European Scrutiny Committee has made clear—the heart of his argument is wrong, because the only way in which we would be able to ensure that the decisions were taken in the interests of the people whom we represent would be to override the Court, in certain circumstances, by the “notwithstanding” formula in the amendment that I have tabled?

Sir Malcolm Rifkind: I have never had any problem with endorsing the curate’s egg. It seems to me that the curate was being sensible, if his egg was only good in parts. That is occasionally true of my hon. Friend’s speeches, and he might like to bear that in mind. [ Laughter. ]

Mr. Cash: At least my speeches are not rotten eggs.

Sir Malcolm Rifkind: I can understand my hon. Friend’s view on that matter.

It does not matter whether we are Eurosceptics or believers in the European Union, we all believe in the democratic principle. If the European Union is to survive and prosper, it is crucial that power should only be given to institutions that are not directly or even indirectly accountable to the electorate in the rarest possible circumstances and with any constraints that are reasonable and proper in the circumstances.

I am delighted that unlike the constitution, and contrary to the Government’s original strategy, there is a protocol that states that there will not be justiciability of the role of the European Court. The question is whether that is watertight. If the Government had been more competent during the original negotiation, they would have been able to remove the residual doubt by simply saying that
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the protocol will apply regardless of other treaties and regardless of European law. As my hon. Friend the Member for Aylesbury (Mr. Lidington) said, such constraints apply elsewhere and could have applied here, if the Government had not missed the trick. It would be difficult now that the treaty has been agreed for them to go back and renegotiate it. That means that we will have to be careful in analysing the Government’s arguments to see whether, notwithstanding that omission, the protocol is something of value. If it is, it will not only help the Government and the United Kingdom, but it will be a big step forward in how to relate to the European Union for countries that want to be part of it, as long as it can show the flexibility and diversity necessary for an organisation of 27 and perhaps, one day, more than 30 countries.

6.4 pm

Mr. Michael Meacher (Oldham, West and Royton) (Lab): The right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind) made, as always, an eloquent and passionate speech in support of his fundamental view of the protocol insulating the UK from the justiciable effects of the charter. I start from a very different position on the application of the charter of fundamental rights, so I shall not attempt to counter his arguments.

I regard this debate as one of the most important on the treaty, because the charter of fundamental rights, the decisions of the European Court of Justice and the tenor and direction of several EU directives are central to the issue of a social versus neo-liberal Europe, which lies at the heart of the European project.

The charter raises two immediate questions. Although I listened to both Front-Bench speeches, I am still very puzzled about why the Government are so adamantly opposed to the application of those rights in this country, especially as every one of the other 26 member states has accepted them without demur, including both right-wing and left-wing Governments. A pragmatic answer—although I am struggling to find an explanation—might be that the charter would ban excessive working hours. The British worker works more hours a week than anyone else in Europe and the CBI would like to keep it that way. It would also permit secondary action in industrial disputes, but at present British workers cannot take such action, although employers can. No doubt the CBI would like to keep it like that as well. The right to take secondary action has never been an issue in any other country in Europe, although it has had enormous implications in this country.

Mr. MacShane: Does my right hon. Friend accept that the German constitution forbids some 1.5 million to 2 million civil servants and public sector employees from even going on strike? It is the Germans who insisted on many of the safeguards—the so-called lateral or horizontal safeguards—being put into the charter before the protocol question arose, to preserve their ban on strikes, which is far more draconian than anything in the UK.

Mr. Meacher: I agree with my right hon. Friend. I am simply searching for an explanation and it may be that I have hit on the wrong one. I hope that I have,
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because none of the explanations that I can think of appears to carry much weight. If it is a matter of keeping the CBI sweet, I suggest that that is not the job of a Labour Government. Nor is it the responsibility of a Labour Government to implement what Tony Blair, the former Prime Minister, once commended to a business gathering as

We inherited that from the Conservatives.

It is shameful that we are not proud to welcome the charter of fundamental rights into our own legislation, which every other nation in Europe has taken in its stride as the foundation of a civilised society. I cannot see what the problem is. We have continual discussions about whether it will make a difference, and I am not sure that it would, but I cannot see why we object to implementing it.

It is far from clear whether the charter will affect UK law. The Government allowed the charter to be made legally binding, but then put forward a protocol that, they argue, will prevent the charter from affecting UK law or at least will limit its impact. However, others have queried the status of the protocol. The Swedish Prime Minister said on 26 June last year that the UK had accepted that the charter was legally binding, which is certainly true, and then added:

Significantly, when Tony Blair was presenting the protocol to the UK Parliament on the day before, he misread the text —[Interruption.] Well, I assume he misread it. He said that

However, the text of the protocol actually says:

The clear implication is that although one section of the charter cannot be used to create new rights, other sections almost certainly will be. In that respect, I am sympathetic to some of the arguments coming from the Opposition. But even in respect of title IV on social rights, the text of the protocol states explicitly that the charter does not create justiciable rights applicable to the UK—and several people have quoted this—

It will presumably be left for the European Court of Justice to decide for itself whether the UK has attempted to provide for such rights in its national law and to decide whether the attempt to provide such rights is adequate in the light of the charter. Indeed, it is very difficult to see how this discrete carve-out, so methodically prepared, can work in practice. Firms operating in one member state will be affected, but if they operate in more than one member state, the charter will clearly apply. Migrants coming from another member state to the UK would presumably still be covered. Anyone who travelled to another member state from this country—for health services, for example—would presumably be able
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to use the charter. Moreover, there are 30 years of EU jurisprudence to say that there can be no two-tier system of European rights.

Jon Cruddas: On the issue of title IV rights versus title II rights, is it not the case, given the protocol, that the European Court could interpret the economic rights under the latter as having precedence in this country over employment rights in the former?

Mr. Meacher: That is indeed quite possible. My hon. Friend makes a very important point.

Jon Trickett: May I draw my right hon. Friend’s attention to Tony Blair’s speech to the CBI in November 2003, in which he explicitly said:

namely, free markets? Is it not clear that the former Prime Minister gave primacy to competition over social protections?

Mr. Meacher: I very much agree with what my hon. Friend says, and I am sure that he will pursue it at greater length later in the debate.

What I find most sad and perverse about this whole sorry saga is that, over time, this claimed uniqueness for the UK will almost certainly increasingly unravel. It will be eroded by ECJ judgments, which are quite likely to happen, and also by the interactive knock-on effects between title IV and the other parts of the protocol. It seems to me tragic that the Government are investing such enormous legal and logistical resources in resisting something on which they are all too likely to lose in the end, yet which every other country in Europe has decided is practical and desirable. I simply do not understand why the Government have got themselves into that position unless it is fear of the Eurosceptic press. That is the only other consideration that I can think of, but I hope that that is not the case.

For any Labour Government, enforcing a justiciable charter of fundamental rights should be integral to securing a social Europe to counter the neo-liberal orientations of the EU treaties. That is starkly illustrated by the Viking and Vaxholm cases, which were mentioned earlier. Two months ago, the Swedish and Finnish unions sought to prevent companies from massively undercutting pay rates by paying foreign workers up to 60 per cent. lower wage rates. However, the ruling was—this makes it so interesting and important—that although there was a fundamental right to take collective industrial action, such action represents a restriction on the employer’s right of freedom of establishment. Of course, industrial action by its very nature will be an obstacle on the activities and freedom of the company. In other words, an employer’s right to freedom of establishment trumps the union’s right to strike. That is worryingly reminiscent, if I may say so, of the infamous judgment in the Taff Vale case of 1901. The Taff Vale railway took the Amalgamated Society of Railway Servants to court for having the audacity to go on strike. The crime was known then as being “in restraint of trade”. Perhaps all that has changed is the terminology, because we are now talking about exactly the same point but it is now called freedom of establishment.


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Nor is that an isolated example of the neo-liberal propensities within the EU treaties. The Lisbon treaty adopted the curious word—I had never heard it before—“flexicurity” to give the wholly false impression that if workers embrace flexibility, job security will automatically follow. Some of us might regard that as a contradiction in terms.

Mr. MacShane: “Flexicurity” was developed by the Danish social democratic Landsorganisation. It is a term used in the Nordic countries to describe the combination of job security protection and flexible labour markets, which has allowed Sweden and Denmark to grow. It is a wholly social democratic and progressive concept—not a neo-liberal idea at all.

Mr. Meacher: It is always helpful to have an exegetist of such immense academic knowledge as my right hon. Friend and I bow to his superior knowledge. However, whether he likes it or not, I still think that the term has neo-liberal implications—irrespective of whether it started out like that. The treaty also demands the abolition of what are called

a highly subjective notion, of course—in contracts that supposedly

Despite all the spin about flexicurity—I entirely absolve my right hon. Friend of any accusation of using spin—the detailed language in some parts of the treaty suggests, unless it is balanced by a robust and effective charter of rights, a slippery slope on which it would be easy to slide back to the sort of casualisation and insecurity that we saw in previous decades in this country. That is my central point and bottom line in the debate.

That is all too clearly revealed, to provide one further example, in an EU green paper promoting flexicurity, which says that contractor obligations to monitor employment law among sub-contractors

That just about says it all. The direction of travel is unmistakable.

For a final example, under article III-147 of the old constitution, which remains under the reform treaty, the EU would be given power to enforce privatisation in any area of economic activity:

We have already seen that in action with the EU services directive, which was seeking to extend the private sector into all areas of public service, but at least health care was left out on that occasion. However, a draft EU health services directive was adopted at the end of last year by the European Commission and was designed to create a market in health care.

I conclude that this abundant evidence of the neo-liberal underpinning of the EU treaties is the overwhelming reason why we need a balance to secure a social Europe, not just a market Europe, and why a charter for fundamental human rights is crucial to achieve that balance.


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6.19 pm

Mr. Peter Lilley (Hitchin and Harpenden) (Con): It is a pleasure to follow the right hon. Member for Oldham, West and Royton (Mr. Meacher). He made an important speech that exemplified the extent to which rights, or at least some rights, are essentially political and economic in their origin and their importance. It should therefore perhaps be political and economic matters that lead to their definition and implementation.

All parties and all Members in this House are in favour of basic human rights—what we normally mean by human rights, which do not extend into the sphere of certain economic rights. All parties have always supported human rights, yet successive Governments have opposed the implementation into treaty law of a charter of human rights. Why is that? Why have successive UK Governments, including this one, opposed the implementation at a European level of a justiciable charter of human rights?

The matter would be clearer if the Government would do as I asked in my point of order at the start of the debate. For the convenience of the debate, they should table information about the positions that they took during the negotiations on the European constitutional treaty and the European Convention. Only then will we be able to see clearly what is from time to time referred to by those who are more knowledgeable than the rest of us—notably my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), who participated in that Convention. I hope that either now or when she sums up, the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), will promise that in future, each day, alongside all the other documents that are supplied to inform our debates, we will have on the Table the resolutions that the Government moved and the terms in which they moved them during the Convention, so that we will know what the Government’s position is or was.

Mr. MacShane: Is the right hon. Gentleman aware that during the negotiations on the constitutional treaty—the one that the French and Dutch killed off—the Government set up a Special Standing Committee of both Houses of Parliament and invited every right hon. and hon. Member and peer to attend to hear from negotiating Ministers what was being said? Not a single Member from the right hon. Gentleman’s Front Bench turned up to one of those meetings.

Mr. Lilley: I am not certain that that is true. I turned up to those meetings frequently. They were meant primarily not to allow Ministers to report back but to allow the Members of this House who were sent to the Convention to report back, as they did. Both my right hon. Friend the Member for Wells and the hon. Member for Birmingham, Edgbaston (Ms Stuart) reached the conclusion that the constitution was not in the interests of the House, and that constitution was fundamentally the same as the treaty that is before us now. The right hon. Gentleman has scored an own goal by referring back to that Committee.

Mr. Cash: I am sure—I cannot believe that the right hon. Member for Rotherham (Mr. MacShane) does not recall this—that I attended every single one of those proceedings as shadow Attorney-General.


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