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5 Feb 2008 : Column 839

Mr. Lilley: Game, set and match, I think, to my hon. Friend.

Mr. Clappison: Must not that meeting have taken place before the meeting of the European Scrutiny Committee of 7 June last year, when the then Foreign Secretary told the Committee that nothing was happening and that there was nothing to discuss?

Mr. Lilley: My hon. Friend makes an extremely pertinent point with great crispness, as he has throughout these debates.

The reason, I suggest, that successive Governments of both parties have opposed the implementation in European treaties of a charter of fundamental rights and sought, even this time, to block its effect with a protocol is because we in this country have a pragmatic approach to human rights. We recognise that rights are not absolute. Each human right has to be balanced against another. Free speech has to be balanced against the right to protect one’s reputation through the libel laws and so on. Somebody must decide the balance between those rights and, in the past, after the initial interpretations of the courts, this House has decided. Often, deciding the balance has been an intrinsically political decision. I think that that is the point that my right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind) was making.

The rights as laid down in the charters and conventions are necessarily vague, imprecise and general, so somebody—or some body—must explicate them in accordance with the detailed circumstances in which we find ourselves; they must relate those generalities to the complexities of the life that we live. Some body must do that. In the past, this body, the Houses of Parliament, has ultimately spelled out what rights mean in detail rather than leaving such decisions to general statements from a different body of people: judges, who are unaccountable to the electorate.

Once we allow lawyers and courts to have the last say, rights will mean what the court says that they do. They will not mean what we thought when we signed up to those rights, or what the people who originally drafted them meant. They will mean what the court says. If that court is the European Court of Justice, there will ultimately be no recourse except in the extreme circumstances when all 27 members can agree to override the Court and change the rights or the constitutional treaties that govern us. That is unlikely and we cannot rely on it.

I recall an example of how important the discretion of the Court was. Normally, people would expect me to be hostile to the Court. However, on one occasion it was set to adjudicate on a claim brought against the British Government on pension law. It was an extremely important case and £5 billion of tax revenue hung on it. If the decision had gone against the British Government, we would have had to recall Parliament during the recess and bring in new taxes to replace the £5 billion of lost revenue. I had to report to Parliament during my preparations for the event and the Law Officers had to report on the likely judgment that we could expect. They reported that in their view, according to all the legal advice and in the opinion of both the prosecution and the defence, the British Government would lose the case.


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I ventured, rather timidly as a non-lawyer, to suggest to my Cabinet colleagues that the Law Officers had overlooked one thing: the ECJ, although it is a court of justice, is a political court and will always put the interests of the EU first. It was in the interests of the EU not to upset the apple-cart. At that point, we had not ratified the Maastricht treaty. It would have been hugely difficult to ratify the Maastricht treaty if Europe suddenly deprived us of £5 billion in tax, and forced the Government to recall Parliament in the summer to pass £5 billion-worth of new taxes. I confidently asserted that all the lawyers were wrong and that the ECJ would take the politic decision and uphold our position. It did. After that, different Departments from Whitehall used to come and consult me about legal matters because they seemed to think that I had an inner judgment about what would happen.

We need to remember that the ECJ will have the last say on what rights are. It will make those decisions politically, but without any recourse to the electorate—unlike us.

Mr. Heathcoat-Amory: My right hon. Friend is making an extremely effective point. I remind him that the situation will get worse under the treaty. Under article 9, paragraph 2, the ECJ will have to practise mutual sincere co-operation with the other EU institutions, which exclude member states. Any bias that he detects will be redoubled if the treaty is ever ratified.

Mr. Lilley: My right hon. Friend makes an extremely good point that explains why we should look very carefully at what is happening and why, in the laughably short one and a half hours that we have to consider the amendments this evening, we should take every opportunity to amend the Bill. In that way we can try, to the extent that it is in our power, to prevent the greater dangers that lie ahead.

The other aspect of leaving the balancing and explication of different rights to the Court rather than to the parliamentary process is that we cannot amend decisions when circumstances change or if we find that they are not what we wanted or what our constituents feel to be fundamentally fair, reasonable and right. The fact that we cannot amend them means, in turn, that we cannot take risks with them.

Those hon. Members who have expressed concern about economic rights should know that I would feel far more confident about granting economic rights to workers, say, if I knew that they could be withdrawn if they did not work out to their advantage. For example, I might fear that a change might turn out to price people out of a job rather than increase their well-being. If I knew that it could be revised, I should be much more willing to be generous about trying it out in the first place. Therefore, we have a choice: we can either throw caution to the winds, leave all decisions to the ECJ and hope that everything turns out all right, or we have to be terribly cautious about granting specific economic and other rights, for fear that we cannot change them if they work out badly. Whatever one’s position in these matters—whether one sides with the Labour Members who have spoken in the debate or with the neo-liberals to whom they have referred and of whom I assume that I am one—I urge the House to say, “Yes, we believe in rights, but ultimately they should be
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defended, protected, developed and evolved by the parliamentary process and not by a foreign jurisdiction over which we have no control and to which there is no recourse.”

6.32 pm

Jon Trickett (Hemsworth) (Lab): It is a pleasure to follow the right hon. Member for Hitchin and Harpenden (Mr. Lilley), who made some telling points. I entirely accept that this House should have primacy wherever possible, but the backdrop to the debate is that our economy has escaped our national boundaries. Parliament no longer controls it, and there is no longer coterminosity between how an economy works and the nation state. That is why, as I mentioned in my contribution last week, I believe that there has to be some sort of supranational collaboration on economic matters.

However, I fear that an open and free internal market in goods, labour and capital will have consequences for social cohesion, and I want to set out the problems that can arise. The requirements of the internal market in the EU mean that labour should be able to move around the continent freely, in the same way as both capital and goods and services. That is fine, provided that there are appropriate and adequate social protections to prevent the breakdown of community cohesion, which I fear is the corollary of having a free market in labour.

Yet it seems that the Government are allowing that breakdown to happen, which is why I want to return to the problematic and anomalous title IV in the charter of fundamental rights. The protocol makes the extraordinary statement that title IV, alone of all the other titles, will give rise to no additional justiciable rights in the UK. Why is that qualification attached only to title IV and not to any of the others? For an answer to that, we need to reflect a little on the history of that red line.

I did some research on the internet earlier today, and found the item that appeared on the BBC site at 10 minutes to 1 in the morning on the Saturday of last June’s Brussels summit. The item states:

It was clear that Tony Blair regarded what can only be called an opt-out as a major achievement in the negotiations. In his speech to the CBI to which I referred a few moments ago he said:

The CBI said of the fundamental human rights contained in the charter:

that the charter


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Ms Katy Clark (North Ayrshire and Arran) (Lab): Does my hon. Friend agree that the former Prime Minister probably had little to fear from the interpretation provided by the ECJ, given that institution’s previous judgments? It has made it clear that it will not allow any European provision to override British industrial relations law, but that it will interpret laws and rights that come from Europe in accordance with our domestic approach.

Jon Trickett: I should like to explore that point in a moment, as ECJ rulings tend to be complex and we need to understand them better.

The CBI said that title IV would threaten Britain’s flexible labour market, but there is an interaction between the legal processes involved and the socio-economic processes that run alongside them. I shall give three examples of the problems that can arise. Although they come from my constituency, I am sure that other hon. Members will recognise them from their own.

The first involves a company that employed what might be called indigenous workers—people who had lived in the area all their lives. They were due to acquire additional labour rights after a year’s employment, but as the deadline of 11 months, three weeks and six days approached, they were sacked. Within eight days, they were replaced: exactly the same number of employees were put into the same jobs, having been imported from Poland on agency labour contracts.

The second example involves a company that had an agency labour stand inside its factory. Two years ago, Parliament raised the minimum wage by 30p an hour, and the company immediately told its agency work force that it would accept that increase but that it would reduce the bonuses to which workers were entitled—and which were paid at a rate of £1 an hour—by precisely the same amount.

The third example from my constituency involves one of the largest firms in the UK. It is a big employer in my area, and it takes on huge numbers of migrant labourers. I assure the House that I attach no responsibility to those workers, as they are unfortunate people who are being dragged across the continent by profiteers. However, the company decided to do away with overtime payments. On new year’s day 2008, it changed its shift patterns to avoid paying the workers double pay.

Those are the kind of actions taken in the much-vaunted flexible labour market that the CBI and our right hon. Friend Tony Blair had in mind when he decided to tackle title IV, which gives workers the right to collective bargaining and to take action in cases of conflict with management. We have heard on a number of occasions that title IV will give rise to no further justiciable rights in the United Kingdom, so we are entitled to ask the Government why on earth we are not having a proper debate in Government time about those labour market issues, which are of great concern in the labour movement. Why are we dealing with them in this debate? Why do promises made to me privately appear to have been dishonoured? It is not acceptable that we have to address such matters in this way.

Will the Government explain why they have put a double lock-out on title IV—“Solidarity”—which deals with those matters? Why are they allowing other rights
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and freedoms under the fundamental charter and not subjecting them to the same lock-out? It seems to me that the treaty deals with rights attached to collective bargaining and collective action that the Government have decided to put at arm’s length and shove away from us, but other rights, such as the right of companies to establish themselves anywhere in the UK and to provide services anywhere in Europe, are not subject to the same lock-out. The position is anomalous and creates asymmetry; on the one hand, capital has rights to provide goods and services and to move across the continent, yet on the other hand there is a lock-down on the rights of workers to organise collectively should they be faced with oppressive management.

That leads to the point about the ECJ that my hon. Friend the Member for North Ayrshire and Arran (Ms Clark) raised a few moments ago. The Court is apparently inhabited by a neo-liberal culture that attempts to give primacy to the needs of the free market and the internal market, with the open movement of labour, goods, services and capital, at the expense of collective bargaining rights. We have already heard reference to the Viking and Laval cases. I shall not go into them again, save to note that a contract made between an employer and an employee in Latvia now appears to have legal validity in the UK—this also applies elsewhere—should the company decide to bring Latvian workers to the UK. In considering the two cases in general terms, it appears to me that there is a series of rights, responsibilities and freedoms under the charter and that the Court—a non-political body—will be left to arbitrate between them. The Court will make political judgments in each case about which rights or freedoms should have priority. In the Viking and Laval cases, it is clear that the decisions taken by the Court gave primacy to the right of a company to establish itself and to provide services anywhere in the EU at the expense of the right to collective bargaining and collective action.

Arguably, other case law in the ECJ and in the UK may contest the decisions in those two cases, but the opt-out on title IV, and the particular phrase in question, seems to give a clear nudge and wink to the ECJ that it is right to interpret the hierarchy of rights and responsibilities as it has so far, and that in the minds of at least the British and Polish Governments, it is right to give primacy to the rights of companies to trade, sometimes oppressively in relation to their work force, rather than to the right of workers to take collective action. I think the ECJ will regard that wording as more than a nod and a wink to say that it should continue making decisions such as those in the Viking and Laval cases and in others.

In the absence of the proper debate I feel I was promised, I must press the Minister to address those specific points to give us some reassurance. A large number of Labour Members are concerned and every trade union in the country has endorsed the questions we are trying to ask. Without a satisfactory explanation, I fear that there is only one conclusion: the British Government, for whatever reason, have decided that the asymmetrical relationship between labour and capital that I described should continue, and that that asymmetry should work at the expense of labour and in favour of the interests of capital.


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Mrs. Theresa May (Maidenhead) (Con): On a point of order, Madam Deputy Speaker. I seek your guidance about ensuring that information given to the House by Ministers is accurate.

Yesterday, at column 660 of Hansard, the Secretary of State for Justice said in his statement on the reported bugging of the meeting between the hon. Member for Tooting (Mr. Khan) and Babar Ahmad that he was made aware of the burden of the allegations on Saturday. In the last hour we have learned that the Justice Secretary had a meeting in his Department to discuss press inquiries about the meeting between the hon. Member for Tooting and Babar Ahmad last December. Given that we know that officials in the Department knew about the bugging allegations last December, are we really to believe that they did not mention them to the Justice Secretary, and how can we ensure that he comes to the House to set the matter straight?

Madam Deputy Speaker (Sylvia Heal): I understand the right hon. Lady’s point of order, but she will appreciate that it is not a point of order for the Chair. However, her concerns will have been heard by Members on the Treasury Bench and her comments will be on the record.

I am mindful of the pressure on time for Members who want to contribute to the debate. I call Mr. Heathcoat-Amory.

6.46 pm

Mr. David Heathcoat-Amory (Wells) (Con): My right hon. Friend the Member for Maidenhead (Mrs. May), the shadow Leader of the House, has just given us a good illustration of how it is to the House that we look to defend our rights, not to any court—still less a foreign court.

The hon. Member for Hemsworth (Jon Trickett) asked many extremely good questions about the extent to which social and employment rights will be enhanced, undermined or degraded by the operation of the charter and its associated protocol. No one in the House can give him an answer; we just do not know. All we know is that those rights will progressively cease to be a matter of contest between elected politicians but will be handed over to another jurisdiction and another court, which we do not control. That is why the debate is important.

The charter will cease to be a declaration and will become a fully binding document and because it will be part of the treaty, in full, it will be superior to national law. That is asserted in the treaty. We are thus making an extraordinarily important transfer of powers and authority in the treaty.

Mr. Richard Bacon (South Norfolk) (Con): My right hon. Friend made an important point when he said “fully binding”. Can he confirm that that means that all the charter is justiciable in the European Court of Justice and that there can be no exceptions?

Mr. Heathcoat-Amory: Yes, I can confirm that. If my hon. Friend glances at article 6 of the treaty he will see that the charter is incorporated in full as a fully binding legal document. It attains exactly the same status as the treaty and all EU law. That is a very important point.


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This is an unhappy outcome for the Government; all the way through the Convention on the Future of Europe they tried to prevent it. They tabled amendments, which were not successful, and there was a sorry series of retreats from assertions made, and indeed from promises given to the House, about the status of the charter—that it would never be legally binding—to giving in and now trying to make the best of a bad job. Of course, the Government had a veto over the whole process. They should have made their red lines clear at the start of the negotiations, rather than come up with self-selected red lines at the end to try to show that our rights and powers had been protected.

No one has answered the question, “Why do we need the charter?” The European convention on human rights is much older, dating back to 1950, and it is already embedded in the EU, which is required to give effect to its general principles. That is in article 6 of the treaty on European Union. Of course, all member states are signed up to the ECHR. It has not been explained why we need a separate, overlapping charter, with its own case law to create more confusion. In my view, it is part of the EU’s determination always to have a monopoly on legal rights and legal order. It is contemptuous and suspicious of any other organisation, whether legal, social or political, that might be a competitor.

On the remarkable story of whether the charter contains new rights, I intervened on the Secretary of State for Justice to point out that the Government’s often repeated claim that there are no new rights is simply and flatly untrue. Just to remind the House, article 13 of the charter says that


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