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“scientific research shall be free of constraint.”
The explanatory notes confirm that that right is not recorded in any other document to which we are a party. That is a new right. When I was criticised on that point by the hon. Member for Kingston and Surbiton (Mr. Davey), I pointed out to him that I opposed the right because I believe that Parliament should restrain scientific research from time to time, in the interests of animal welfare and so on. He then said that he, too, was in favour of such matters being decided in Parliament, so he contradicted himself in the space of 15 seconds. Perhaps it is no surprise that he does not understand the issue.
Mr. Heathcoat-Amory: If the hon. Gentleman will forgive me, I am short of time and cannot take too many interventions. We debated the matter to exhaustion. He could conclude only, rather lamely, that the House should decide such matters, but the whole point about the charter is that we will not decide. We are talking about a bald, unconditional right in the charter, derived from no other document, which takes decision making on those subjects away from the House. It is a matter of democracy, and if the hon. Gentleman refers to Hansard, he will see just how foolish his defence was.
There is also the remarkable saga of the opt-out claim to consider. The former Prime Minister, Tony Blair, often said that we had an opt-out, which was completely untrue. That was later corrected, but none
of the well-paid officials who helped him issued a correction at the time. The fact is that we do not have an opt-out from the protocol. The European Scrutiny Committee shows, certainly to my satisfaction, that the protocol gives no defence against rights finding their way back into UK law indirectly as a result of our overriding obligation to abide by European Union law. That obligation is asserted elsewhere in the treaty that we are considering, and indeed in existing treaties. The European Scrutiny Committee shows that the protocol on which the Government constantly rely is threadbare. It is certainly fatally weakened.
The rights are incredibly general. Human dignity and physical integrity are again supported, and, in general terms, who could be against those concepts? However, they have great relevance to the debate on abortion. Whatever one’s views on abortion, I think that we all agree that decisions on the subject should be made by representative Parliaments. We can contrast that with the situation in the United States, where such issues are a matter for judicial decision. That is one of the reasons why people there shoot doctors and try to blow up abortion clinics. Decisions on whether abortion should be restricted or available on demand are, as a constitutional right, made by the Supreme Court, and cannot be changed by Congress; that would require an amendment to the constitution, which is incredibly difficult and cumbersome to achieve. Removing decision making on that subject from the congressional sphere creates more frustration, and less democracy.
Exactly the same is true of respect for family life and the right to found a family; they sound fine, but they could easily be applied to issues that the House spends a great deal of time debating, such as the rights of asylum seekers and the extent to which they can be reunited with family members in other countries. At present, they generally cannot be so reunited. Would we like it if debates in the House became irrelevant because such issues were decided for us? The same is true of social rights—the so-called chapter IV rights—which are constantly, and rightly, raised by Labour Members. Those issues should be a matter of contest between ourselves. It is quite wrong that a decision about whether they are adjudicated on in the European Court of Justice depends on whether the protocol is strong, weak, or threadbare, or can be relied on.
We know that the European Court of Justice is an activist, interventionist court with its own dynamic. As I pointed out in an intervention, it is not neutral in any dispute between a member state and the European Union institutions. If the treaty is ratified, the ECJ will be required by treaty law to practise mutual sincere co-operation. I would never go to court if I knew that the court had to practise mutual sincere co-operation with my legal opponent, but that is the situation in Europe. If our protocol is under attack from the European Union, the arbitrating court has a duty to co-operate not with the member state but with the Commission, or whatever the European Union constitution involved.
The fact is that human rights are incredibly complex. They often involve conflicts and trade-offs. A balance has to be struck between competing rights, and that should be done here in Parliament. Of course we sign up to overriding international rights to moderate the
behaviour of states internationally; that is what the European convention on human rights did, which we signed in 1950.
The charter, however, does something quite different: it drills down into member states’ law-making processes. It will interfere with and replace decisions that we should make here. It is a further massive transfer of power and authority from the House to another jurisdiction, and people know that. They will cease to come and lobby us about their rights—about whether those rights should be extended, or whether the competing rights of, say, employers and employees should be removed or strengthened. They will not bother to do that. They will not vote for us if they know that those essential decisions are not made by us in Parliament. There is evidence that that already happens. There is disillusionment with the political process.
Let us not pretend that the loss of democracy here somehow creates democracy in the European Union, because turnout has declined in every single European Parliament election since 1979. The disillusionment is continent wide. The public are simply losing faith in the ability of elected people to influence decisions and outcomes affecting their lives. Again, in the section of the treaty that we are discussing, we are being invited to transfer more powers from the House. The Government were well aware of that danger, and that is precisely why they fought the proposals all the way through the Convention process. The Convention became the constitution, and when that was turned down, the Government fought the proposals in the new treaty. The safeguards and reassurances given are almost worthless; that is the conclusion of the European Scrutiny Committee’s report. That is why I invite the House to support the amendment this evening.
6.59 pm
Jon Cruddas (Dagenham) (Lab): Like the right hon. Member for Wells (Mr. Heathcoat-Amory), I shall focus on the charter of fundamental rights, pose some questions about how effective the protocol will be and highlight key labour market issues that a number of Members on both sides of the House have raised in the debate.
Four key issues appear to be relevant to a discussion of the labour market elements of the charter. First, to what extent will British workers be denied the opportunity to rely on the charter to interpret and expand existing rights derived from Community law? If British workers are unable to rely on the charter, is it conceivable that EU rights will have a diluted status in the UK? Secondly, to what extent are British workers protected when they take industrial action that an employer claims violates his or her right to freedom of establishment? Is it enough that the workers have complied with domestic law, or is their action vulnerable to legal restraint?
Thirdly, to what extent are British workers at a disadvantage compared with workers in other member states by virtue of the fact that they are unable to rely on the charter as a defence in legal proceedings against them by an employer who claims that their action violates EU law? In effect, does the opt-out prioritise business rights over UK workers’ rights, as a number of my colleagues mentioned earlier?
Fourthly, we must assume that the charter is designed to add value to existing rights and principles in European law. If it does not, what is the point of it? What do the Government believe has been added and what do they believe will not be applicable in the United Kingdom?
To pursue those topics, I shall go back to the Laval and Viking cases—important European case law that emerged only at the end of last year, after the signing of what was initially the opt-out and subsequently became the protocol. They have profound implications for European labour law and specifically for this country, with its history of legal abstention, in respect of the role of the law in industrial relations.
Viking Line is a Finnish ferry company that decided in 2003 to reflag its vessel and employ an Estonian crew on Estonian pay and conditions, cutting its wage costs by some 60 per cent. The case was referred to the European Court of Justice, which ruled that in future any strike action affecting this freedom would have to meet stringent legal tests that the Court itself would assess. The key issue, which I find unprecedented, is that no longer does the legitimacy of industrial action rest upon the democratic mandate of the Union derived from its members and regulated through laws determined by the Parliaments of member states. Now it will also need to meet the criteria imposed and assessed by European judges. I see no precedent in domestic strike law in the UK.
The Laval case is central. As my hon. Friend the Member for Elmet (Colin Burgon) mentioned, Laval is a Latvian company, which in 2004 posted workers from Latvia to work on building sites in Sweden. The Swedish construction union asked the company to agree to the existing collective agreement within the building sector. The company refused, operating instead under the Latvian agreement, including a lower pay scale that undercut the Swedish workers’ wages.
Subsequently the Court ruled, essentially, that the company’s freedom to provide services in any member state should not be restricted by compliance with non-statutory collective bargaining agreements in one member state. Again, that has huge implications for an industrial relations system that is built on legal abstention and free collective bargaining, as in the British case.
Critically, the Court argued that because the EU posted workers directive set out minimum rights, it was unreasonable to force the company to comply with further non-statutory agreements at local or national level. So, instead of EU legislation setting minimum standards, which has been the argument over the past 20 years, going back to 1988 and Jacques Delors coming to the TUC, we now face the threat of those standards being seen as maximum criteria across the EU.
All of us on the Labour Benches should be acutely aware of the implications for further labour market deregulation. Those two cases, among others, give rise to widespread concern that in recent case law the EU has been engaged in a race to the bottom in terms of labour market standards. Indeed, it could be argued that the very notion of a social dimension to the European project, a cornerstone of the Labour party’s strategy over the past 20 years, is under threat. That deserves profound discussion in this place, not least
because of the centrality of that concept in redirecting our party’s approach to Europe more generally.
Let me deal specifically with the protocol and workers’ rights. The first concern is that the protocol could restrict the protection of workers’ rights. However, I understand the Minister’s position that this is not an opt-out, and I hope that she will make it clear in her reply that it will not affect the way that the title IV rights are applied to EU law. That has been the approach throughout the Committee stage, but we need to hear a far broader outline of the Government’s position as there is confusion about that on all sides.
I note that many of the articles contained in title IV specify that the rights that they set down are defined as they exist in
“Community law and national laws and practices”.
The Minister may argue that therefore the protocol is simply a truism. That would raise the question why the protocol was negotiated in the first place. Leaving that aside, I notice that article 31 does not contain such limited language. That article deals with maximum working hours. I hope that the Minister will clarify that the protocol was not negotiated with a view to evading the article 31 rights.
A particularly important question for the labour movement is the purpose of paragraph 2 of article 1 of the protocol, which has been quoted extensively during the debate. It states:
“In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.”
In short, title IV is singled out for a unique provision within the protocol. Title IV, as we know, is the section of the charter entitled “Solidarity” and it contains what we would call workers’ rights, such as the right to information and consultation at work, the right to collective bargaining and collective action, protection from unjustified dismissal, fair and just working conditions, the prohibition of child labour, and so on. This provision has never been fully explained in the House. In fact, when the former Prime Minister reported back in his statement of 25 June last year he mysteriously omitted the words “Title IV of” when reading out the protocol to hon. Members. Perhaps he simply made an inexplicable error of fact, but we need to explore the Government’s reasoning more fully.
As I understand it, the existing charter was referred to by the Advocate-General in recent BECTU litigation extending paid holidays to people with less than 13 weeks’ service. It is unclear whether this will be possible in future in the British context, or whether any attempts to use the charter in this way would breach the provisions of the protocol stating that charter rights are not
“justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.”
It might otherwise be possible to use charter rights to strengthen existing rights in various areas, including information and consultation. The charter provides that workers or their representatives must be
“guaranteed information and consultation in good time”.
On protection in the event of unfair dismissal, the charter provides:
“Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws”.
On fair and just working conditions, the charter provides:
“Every worker has the right to limitation of maximum working hours”.
The information and consultation regulations, the redundancy consultation procedures and the TUPE regulations do not guarantee that workers will be consulted in good time, the TUPE regulations do not protect every worker from dismissal, and the working time regulations do not ensure that every worker has the right to limitation of maximum working hours. The last point was raised by the European Scrutiny Committee of the House of Commons, and according to the Committee, the charter could be used to challenge the implementation of the working time directive, as in the BECTU case.
That might also happen in one of the other member states, but because of the opt-out it may not be possible to mount such a challenge from the United Kingdom, where arguably the need is most acute, given the long hours culture. This gives rise to the possibility that established rights under EC law could have diluted content in the United Kingdom—a view reinforced by the Committee’s apparent concern that ECJ decisions on social policy in cases involving other countries could creep into UK law.
Perhaps the fundamental question is whether it is acceptable, especially for a Labour Government, to put workers’ rights on a different footing from the freedoms of employers, which are contained in title II and are thus not covered by paragraph 2. I would like to think that the Government will not in future seek to celebrate the way in which they have excluded British workers from protections afforded to European workers, and that they will not make a virtue of this to the CBI and the press. We need to be sure that title IV does not have some kind of separate status from the rest of the charter. I am worried that a clever corporate lawyer might try to argue that, as the protocol states only that title IV cannot create new justiciable rights, by implication title II can therefore do so.
This is an important matter for the Minister to clarify. Many of the counter-arguments that I have heard so far seem to amount to saying that the provision makes no difference whatever. Either way, many of us would also like to hear why such an apparently specific proviso was ever negotiated in the first place and, perhaps more importantly, that workers’ rights will not be treated in that way in future.
7.10 pm
Mr. James Clappison (Hertsmere) (Con):
It is a pleasure to follow the sincere remarks of the hon. Member for Dagenham (Jon Cruddas), just as it is to follow the outstanding speech made by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory). May I also congratulate the Lord Chancellor on a vintage performance, as he drew on his years of parliamentary skill to move seamlessly from one proposition to a hopelessly irreconcilable and contradictory one? He told us that
the charter was a wonderful document, and that British interests lay in being fully protected from it. He also told us that we needed the charter because the European Union had not acceded to the convention on human rights, and that, when it did, we would need the charter all the more.
My right hon. Friend the Member for Wells posed an extremely apt question when he asked why we needed the charter at all. We have a sneaking suspicion that concern for human rights is only a secondary motive, and that the primary motive is for the European Union to put itself in the position of a state. Like a state, it would then have a constitution accompanied by a list of fundamental rights with itself as the guarantor of those rights for its citizens and, again like a state, it would sign up to the European convention on human rights alongside the 47 states that have already signed up to it.
If that is not the European Union’s motive, why is the EU framing such a sweeping statement of rights in the charter? Let us remember that the charter will be directly and legally binding for European institutions and member states when implementing Union law. That being the case, why, under chapter I of the charter, do we need to be protected against slavery, torture and execution? Opposition Members sometimes question the activities of the European institutions, but I have yet to hear anyone suggest that we need to be protected against the risk of the European Union imposing inhuman or degrading treatment on us or putting us into forced labour or servitude. The hon. Member for Kingston and Surbiton (Mr. Davey) told me that the Liberal Democrats were interested in the charter having full effect in this country, unconstrained by the protocol—perhaps they know something about it that we do not.
Could these proposals also be a pointer towards the day when the EU seeks a more active foreign and security policy? Could the statement of rights serve as a rationale for the foreign policy initiatives that the European Union might wish to take? We need only look at the clauses on foreign and security policy to see the extent of the EU’s ambitions in this direction. Could we be looking at the foundation for gradual moves in the direction of a European defence policy and of incipient policing, criminal law and anti-terrorism policies directed towards other states and based on these sweeping assertions of human rights?
Mr. Graham Brady (Altrincham and Sale, West) (Con): My hon. Friend is making some valuable points. Does he agree that the creation of the charter and the Fundamental Rights Agency represents a clear attempt by the European Union to remove competition by trying to squeeze the Council of Europe out of business?
Mr. Clappison: It would be a sad day if that were to happen, because the Council of Europe goes much further into Europe and has a much better provenance and a much better history, but who knows just how far the ambitions of the European Union extend in that direction? As far as our Government are concerned, the question is where we stand in relation to all this. As we have heard, the Prime Minister has stated that we were going to have an opt-out or that, if there were no opt-out, the treaty would not extend our laws any further.
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