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5 Feb 2008 : Column 852

There are three points that I would like the Minister to address. First, will the charter be used by the Commission as a basis for proposing legislation in new areas? Will the protocol take effect against new rights in legislative proposals derived from the charter by the Commission? We apprehend that the Commission will take the charter as an inspiration for its policies, because it has said as much in setting out its fundamental principles in the charter. So could the charter indirectly import new rights into United Kingdom law through new legislation derived from it?

Secondly, we are told that the protocol will not allow the charter to extend rights beyond those already recognised in the UK. Let us look at this matter from the opposite point of view from the one rightly adopted by my right hon. Friend the Member for Wells, however, and ask how easy it would be to decide exactly what rights were already recognised here. If a right were already deemed to be in existence here, the European Court of Justice would have full scope to interpret the charter in the United Kingdom. And who would make all the decisions on these matters? It would of course be the European Court of Justice itself.

May I give the Minister an example? Article 49 of the charter sets out a right in respect of the proportionality of criminal offences and penalties. It states:

Can the Minister tell us whether this is already recognised in United Kingdom law? Do we have the right not to have a disproportionate penalty applied to a criminal offence? If so, will not the European Court of Justice be able to rule on these matters in the United Kingdom in the relevant circumstances when dealing with Union law? Will the Minister tell us whether this right is already recognised in the United Kingdom?

Thirdly, there is an equally important point about the interpretation of decisions taken by the European Court of Justice in member states in which the charter has full effect, and about whether those decisions will have effect in the United Kingdom. We have already heard arguments on this point, but I want to put it to the Minister again because the Government have yet to deny that that will be the case. They certainly did not go that far in their response to the European Scrutiny Committee. Will the Minister tell us whether decisions taken by the European Court in the countries where the charter has full force will be effective in United Kingdom law as part of the acquis of the European Court of Justice—yes or no?

Who has the final right of decision on whether a right already exists in United Kingdom law and how far such a right goes, and on whether decisions relating to other member states will affect this country? The answer is the European Court of Justice, and there is no appeal beyond the Court. Its decision is final on these matters. The House must face up to the fact that we are locking ourselves into a situation in which the final decision will be taken by the European Court of Justice. My right hon. Friends the Members for Wells and for Hitchin and Harpenden (Mr. Lilley) have made extremely valuable points on these matters. Given the breadth of the charter and the rights that it contains, the ambit of the jurisdiction of the European Court of
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Justice could run very far into matters that we are used to deciding for ourselves in this House.

My right hon. Friend the Member for Wells raised the very apt example of abortion. Article 3 of the charter sets out the right to the integrity of the person. If the European Court of Justice were to interpret such matters that far, they could be decided by that provision. Some constituents came to see me the other day about the Human Fertilisation and Embryology Bill. They asked me how I was going to vote on it, and went through the arguments with me. In future, are we to say to our constituents, “It’s all very well you coming to see me, but at the end of the day, these decisions will be taken by the European Court of Justice, not as a result of arguments or votes in the House of Commons but as a result of arguments and decisions put forward by lawyers and judges in the European Court of Justice”? What effect would that have on the standing of this House?

My right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind) said that he was confident about the health of the European Union and the democratic principle. I have no doubts about the resilience of the European Union, but I am afraid that I do have fears for the health of the democratic principle, both in the European Union and in this country. Let no one in this House be under any illusion about the extent of the authority, power and decision making that they are about to cede to European Union institutions—particularly the European Court of Justice—as a result of the decisions that we are taking this day. We are abdicating an important part of our historical role as the guardian of the rights of the people of this country. We are handing those rights over to another institution over which our voters and the people of this country have very limited, if any, accountability.

Let us be in no doubt about the seriousness of the steps that we are taking today. We cannot know with any great certainty where this will end, but given the history of what has happened to safeguards in the European Union, we have every ground for legitimate fear. We can be certain of one thing, beyond peradventure. I agree with what Commission President Barroso said to the German press shortly after the signing of the outline agreement that we are debating today:

7.20 pm

Mr. Denis MacShane (Rotherham) (Lab): This has been a good and clarifying debate—Members here are few in number, but there have been high-quality contributions from all sides.

Anybody from another country or platform reading this debate tomorrow will understand clearly that, for the Conservative party, only one absolute cast-iron guarantee would ensure that in no wit would the traditional British sovereignty of this House of Commons be placed under threat by anybody outside our island borders: withdrawal from the European Union. I particularly hope that the Conservative winding-up speech will answer the question that I asked about whether the party wants
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to withdraw from the social chapter. At his annual conference, the leader of the Conservative party made such a statement; the workers and employees of Britain need to know whether that is the policy or not.

Would that much more distinguished forefathers of ours, who sat here, were alive at this hour. I thought that the whole history of the House of Commons was about the extension of rights not only to all citizens of this country, but to people around the world. Wilberforce, Shaftesbury, Emmeline Pankhurst, the people who set up the International Labour Organisation, Harold Macmillan and Duncan Sandys—

Mr. Cash: I am extremely glad that the right hon. Gentleman is going on a historical journey, because I should like to make this point. What was the most important question raised in the 19th century? It was about the right to vote and democracy, for which people such as John Bright, a member of my family, fought. It is precisely because the arrangements that we are discussing go in exactly the opposite direction, and give power to the European Court of Justice, that I completely reject them.

Mr. MacShane: If the hon. Gentleman cares to examine what John Bright and his great friend Cobden did, he will find that they were huge supporters of free trade and rightly argued for international institutions that would open countries up to it. However, we cannot have good words and nice policies unless we have a mechanism of enforcement, and since day one of the European Economic Community, the European Court of Justice has been that enforcement mechanism. I fully accept the points made by my hon. Friends about the Laval and Viking cases, but on balance the Court has been good for workers and for Europe. If we adopted the Opposition amendment, we would throw out the proverbial European Court of Justice baby with the bathwater of the whole European Union.

We have heard some remarkable language in this debate. The right hon. Member for Hitchin and Harpenden (Mr. Lilley) talked about a foreign jurisdiction; actually, a British judge serves on the Court. Furthermore, the World Trade Organisation is a foreign jurisdiction—any treaty organisation into which we freely enter and whose adjudicating panel’s or Court’s binding rulings we accept is a foreign jurisdiction. For heaven’s sake, I thought that Britain wanted to extend the concept of the rule of law globally and internationally into as many different areas as possible.

Mr. Brady rose—

Mr. MacShane: Of course I give way to a distinguished former colleague in European affairs.

Mr. Brady: In saying that we should be bound by the rulings of the European Court of Justice, is not the right hon. Gentleman making it clear that the protocol is worthless?

Mr. MacShane: I shall come to the protocol.

The Conservative party refuses to come to terms with a fundamental issue: the rights in the fundamental charter of rights are those for which Britain has fought and struggled to lay down in different binding conventions.
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Many are in Council of Europe conventions, into which we freely enter. It is preposterous to say that we accept legal rulings from the Council of Europe and the European Court of Human Rights, but that we do not want them to be applied in the European Union through the European Court of Justice.

Mr. Grieve: As the right hon. Gentleman knows, there has been a lot of debate about whether we should have a home-grown Bill of Rights; indeed, his Government are interested in the idea. I have heard Ministers say repeatedly how undesirable it would be to have a rewording of the European convention on human rights in our own Bill of Rights, because that might lead to future conflict. However, is not exactly that proposed by the adoption of the charter of fundamental rights? It does very much the same thing.

Mr. MacShane: The hon. Gentleman has a fair theoretical point. In all these debates, I feel at times like William Blake when he wrote:

We all take our different interpretations from the common text in front of us. For example, we had some discussion about the relationship between the ECJ and the Strasbourg Court—I shall call it that for the sake of shorthand—on the question of Gibraltar. This sovereign House of Commons denied the people of Gibraltar their right to vote in European Parliament elections. When they fought and struggled for it, it was the Spanish Government who took the issue up with the European Court of Justice. However, the Gibraltarians had already gone to the European Court of Human Rights and the ECJ accepted the superiority of the ECHR on that matter. We then legislated to allow Gibraltarians to vote in the Spanish regional constituency of the European Parliament. There will be that tension; of course there will.

The right hon. Member for Hitchin and Harpenden gave a marvellous example of the Court backing away from an alarming ruling that would have damaged Europe’s standing in Britain before the Bill on the Maastricht treaty—I would have thought that how that Bill was handled did quite enough damage to Europe’s standing in Britain, but no matter. Such dynamisms exist. To take an example, each country has highly specific national sets of labour rights. In Germany, 1.5 million Be√§mtern—full-time public employees—have no right to strike under the German constitution. That cannot be changed by reference to the right to strike in the European charter of fundamental rights because the horizontal national protection language written into it was put in at the behest of Germany.

France has a completely different approach on issues such as minimum service in the event of strikes. In France, only five trade unions are recognised to sign contracts. Even if a 500,000-strong union went on strike every day, it would have no legal existence under French law. That will not be altered. To that extent, I agree with the points made about the protocol. It is a strengthening of the horizontal provisions in the charter of fundamental rights, but it is not an opt-out. The decision was made to go down that road for political reasons.


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I am happy to say in the House of Commons—I have said it to colleagues—that the political price paid was very high, given how alarming and upsetting it was to trade union friends. I have exchanged correspondence with Mr. Lambert, the director general of the CBI, on the issue and I think that having extracted that, the CBI had a duty to reciprocate and campaign for the ratification of the treaty in Parliament. It has not done that; it was given the works, but has not put much back on the table. That is just a private point—the CBI behaves as it behaves.

Several Labour Members have spoken about their fears and concerns. My right hon. Friend the Member for Oldham, West and Royton (Mr. Meacher) is not here, but he described the European Union as a neo-liberal project. I do a little speaking here and there at international economic conferences in Europe and elsewhere. At meetings in America, and at some of the more business-focused meetings in Europe, the European Union is regarded as a bunch of communist, lefty social-welfarists. It is thought that we in the EU, far from being neo-liberals, are far too soft on social matters. Perhaps my right hon. Friend should read article 2 of the new treaty, which says:

Article 8B states:

that is, trade unions—

No other arrangement in the world writes into the language at the very top of its articles of association—in this case, the treaty—the commitment to promoting social justice and protection.

As an ex-trade union official, I fully agree that much of what I see is not entirely to my liking. The European Court of Justice has, on the whole, been positive for workers and employees. Only last week, it gave a ruling—not a full decision—on the rights of employees in Britain to be able to look after handicapped children. Some vicious, ugly firm refused a mother the right to go and look after a handicapped child, and the case went up to the European Court of Justice, which has said that employers should behave properly. We can look at provisions under the Transfer of Undertakings (Protection of Employment) Regulations 1981 and some of the rulings on working hours. We can look at—this is a matter of deep concern to me and my constituents—the rulings on the pensions stolen from steel and engineering workers, where, again, a ruling from the ECJ has forced our Government, rather late in the day, to step up to the mark and provide justice for those workers.

The Swedish case could be solved if Sweden had a statutory minimum wage. The German Social Democratic party is now dropping its opposition and going in that direction. This is not a nirvana of high wages, but it writes into a national legal obligation what the ECJ then cannot rule against. We should be careful about objections to the country of origin principle. When I was Minister for Europe, one of my most pressing problems was trying to get European law applied to British citizens working in different countries who found all sorts of little social protectionist rackets that stopped
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them having full title, full salary, full pensions and the rest of it. I want to see an open European market, a socially just market in which British citizens have full rights. We must be careful that what is sauce for the British gander in terms of social protection is not used against it.

I must finish by dealing with the absurd complaint that judges are not accountable to electorates. They are not so in this country; they are not so anywhere. The very concept of justice is based on separation of powers. The Conservatives want a European Union from which it can pick and choose the bits that it wants to support. The gist of the speech by the right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind) was, “Let others go further forward, but we can stop where we are.” I do not particularly dissent from that, but believe me, if we want to pick and choose what we like, then other countries can say, “We don’t like Ryanair and easyJet landing”, or “We don’t want the environmental rules that Britain is fighting for to be applied to our nation.” If we want Britain to have an effect and a voice in the European Union, we have to accept that in relation to other countries.

Mr. Clappison rose—

Mr. MacShane: I have taken two interventions and that is my maximum.

I sincerely invite my right hon. and hon. Friends who have spoken critically—I understand where some of that comes from—to reflect carefully. There is a global neo-liberal agenda to destroy Europe, to remove such protections as currently exist, to talk down the right of social protection, and to say that rights are not universal but defined simply by the employer and capital against the human being. That is why I hope that the Government will be supported tonight, and that is why the world, reading this debate, will realise how deeply reactionary and regressive today’s Conservative party is in turning its back on its history of supporting international rights.

7.34 pm

Mr. Mark Harper (Forest of Dean) (Con): The debate and the detailed arguments on both sides once again prove exactly how constrained we are in having to fit our deliberations into the straitjacket of the timetable motion that the House passed last week. Moreover, later on, the detailed discussion in Committee will be shoehorned into just one and a half hours.

I listened carefully to the Lord Chancellor’s opening remarks and to other contributions, but I must confess that I remain confused about exactly what the charter of fundamental rights brings to the table. The Government seem keen to argue that it brings nothing new and that there are no new rights, which is in line with their negotiating position when they argued against the charter having legal force. However, as we have heard, the European Commission makes it clear that new rights will be in force. If that is not the case, I hope that when the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), winds up the debate she will confirm that tomorrow a letter will be winging its way from the Lord Chancellor to the European Commission to point out
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that the information on its website is incorrect and there are no new rights. If that letter does not find its way there, with a placed copy in the Library, we will know that the Minister agrees that there are indeed new rights. As my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) said, there is at least one new right—an unlimited freedom for scientific discovery. During that discussion, we discovered that the Liberal Democrats are very keen on unrestricted scientific experimentation, which will disappoint those who care about animal welfare.

During the negotiations on this part of the European treaty, the Government made it clear that they were unhappy with it, and it is worth putting one or two of those comments on the record. Baroness Scotland, speaking for the Government, said that making the charter binding was

my right hon. Friend the Member for Wells made it clear that the charter is an integral part of the treaty with exactly the same legal force as the rest of it—“requires legal precision.” She continued:


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