Mr. Dominic Grieve (Beaconsfield) (Con): The brevity of my hon. Friend the Member for Stone (Mr. Cash) always comes when he makes those points with which I most agree. He is right in his analysis of the debate. It is extraordinary that the quality of the debate rose dramatically when the Lord Chancellor sat down. Until then, we were treated to a characteristic campaign of explanation that the charter was a wonderful, innocuous document and that those who could not appreciate its merits suffered from the usual Conservative paranoid delusions about its content.
We had to wait until the end of the debate to hear the hon. Member for Linlithgow and East Falkirk (Michael Connarty), who correctly analysed the pros and cons of the changes that the Lisbon treaty will effect. I am only too eager to debate that. We know from listening to the debate between hon. Members in the same political parties that the subject can provoke interesting discussion on a topic of great importance for this countrys future. The Lord Chancellorand Government Front Benchers generallydoes not want anyone to realise that that discussion is happening. If I have a complaint about the process of these debates, whether todays debate or last weeks debate on criminal justice, it is that those on the Treasury Bench reduce the issues to a series of facile soundbites and show an unwillingness to engage, but then complain when the public exhibit what they describe as signs of paranoia. I have to say that I might start to become a bit paranoid if I saw individuals systematically attempting to obfuscate and missing the point so much.
We had a good debate once the Secretary of State had sat down, first with a speech from my hon. Friend the Member for Aylesbury (Mr. Lidington). Then the hon. Member for Hendon (Mr. Dismore) made an important contribution on the role of the charter, which in his view is innocuous. I disagree with him about that. The reason, which I mentioned in my intervention on the right hon. Member for Rotherham (Mr. MacShane), to whom I shall return, is that we have to ask ourselves what the charters purpose is. Let us forget about our protocol for a moment, and ask why the charter is there and what it is designed to achieve.
To respond to the hon. Member for Linlithgow and East Falkirk, my problem with the charter is, first, that it has been placed at the heart of an institution whose primary purpose is not the promotion of human rights. That was picked up in a series of comments, including those of the hon. Members for Elmet (Colin Burgon) and for Hemsworth (Jon Trickett), and the right hon. Member for Oldham, West and Royton (Mr. Meacher), all of whom raised their deep concern about the extent to which the European Unions agenda might be harmful to some of the social policy issues that they want to promote. I do not want to get involved in the
detail of that debate, but they were right to highlight the potential impact of European Union laws and policies in areas of concern to them. Again, the Governments unwillingness to engage with the issue troubles me very much, because it is plainly relevant to how the European Union develops.
I return to the point that we have in the European convention on human rights a document that commands total acceptance in all parts of the House, to which all European countries that are members of the EU are adherents and which provides a well established formula for defining human rights, in wording that is different from the charter of fundamental rights. The point is not just that the charter has extra text covering rights that are not covered by the ECHRthat might be an interesting topic of debatebut that the wording is different. If the Government are so insistent, in their project to introduce a new Bill of Rights, that they are going to keep the ECHR text within the Human Rights Act 1998 because they do not wish to differ from it, that prompts the question, which remains unanswered: why are they so comfortable with the European Union doing the very thing that they do not wish to see done domestically? I hope very much that the Minister will rise to the occasion and deal with that point.
Mr. David Heath (Somerton and Frome) (LD): Do I understand from what the hon. Gentleman is saying that he now agrees with the point that I have made repeatedly, which is that it is unhelpful to have two forms of human rights legislation and wording that are independently justiciable?
Mr. Grieve: The hon. Gentleman makes a good point. The situation raises difficulties of interpretation. I am not saying that there are no arguments to the contrary; what I am saying is that the Government should say why the arguments that they have put forward in the context of a potential domestic Bill of Rights, which they have indicated they wish to introduce, apparently do not need to be considered in the context of the charter of fundamental rights. As yet we have received no answer whatever to that question, because the debate has, I am afraid, so frequently been reduced to such facile levels.
The second issue is the protocol and the impact of the charter of fundamental rights on our national legal and parliamentary processes. The Government negotiated the protocol for some purpose. However, having listened to what those on the Treasury Bench have said on the matter, one begins to think that the protocol is merely a fig leaf, whereas it was originally sold as a protection. The protection that the Government wanted concerned their anxiety to persuade the public in the UK that the charter could not be used to have an impact on, effectively, domestic legal areas.
As European law is expandingone of the purposes of the treaty of Lisbon is for that to happenand moving into, for example, areas of crime and justice, which we debated last week and on which I disagree most profoundly with what the Government are allowing to happen, it must be inevitable that the charter of fundamental rights will apply even in crime and justice areas that fall within the European Unions remit, if the
Government opt into any of them. Again, we have yet to hear any explanation from the Lord Chancellor or the Minister of how the Government think that will operate in practice. If the protocol is in fact worthlessas in my view it isthere will be instances where the European Union and the European Court of Justice will use the charter of fundamental rights to affect the development of UK domestic law in areas such as criminal justice to which we have opted in. It may be argued that that is a good thing; indeed, some Government Members, and certainly Liberal Democrat Members, seem to think that that would be a good development. However, the issue at least merits some debate, which is the very thing that we have not had from the Government.
Mr. Cash: Does my hon. Friend agree that one of the problems that the Government will face is in respect of the question of 28 or 42 days, and does he think that that would be a judgment for the European Court of Justice or the European Court of Human Rights?
Mr. Grieve: I am concerned about the operation of European Court of Justice in this context. It is difficult to know exactly how that will develop, but in view of the architecture of the treaty of Lisbon, it is certain that the potential for decisions of the European Court of Justice, based on the charter, to intrude on our domestic law is real and cannot be ignored.
I want to hear the Ministers answers to those questions. I am sorry that this debate is so characteristically short. I simply say this to the Government: they have failed to make the case. Once again, the House and the country are being asked to accept a series of major changes that have not been properly debated, analysed or thought through.
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): This has been a fascinating debate, although facile in parts; the hon. Member for Beaconsfield (Mr. Grieve) perhaps ought to look on the Benches behind him for that adjective. I commend the passion that has been expressed in all parts of the House and thank the Chairmen of the European Scrutiny Committee and the Joint Committee on Human Rights for their contributions. I should like immediately to apologise to the House for being unable to answer all the questions thrown up in this four-and-a-half-hour debate, but I hope that my hon. Friend the Minister for Europe will address some of them in the following debate on amendments to the Bill.
I start by asserting our pride in our provisions on human rights and stressing again that the human rights provision contained in the Lisbon treaty, particularly the charter of fundamental rights, will ensure that the European Union is committed to the protection of human rights without infringing on the sovereignty of member states. The charter is not, and was never intended to be, a source of new enforceable rights. The 1999 Cologne European Council, which started the work of the charter, was very clear in its conclusions:
The European Council takes the view that, at the present stage of development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident.
The aim of the charter in 1999, as in 2008, was to make the fundamental rights and principles shared by member states more visible by condensing them in a single document. The level of protection of fundamental rights across the Union was never intended to be, and cannot be, changed by the charter, for the simple reason that the charter reflects only existing rights already recognised in the Union, which in some circumstances do no more than restateand are subject todomestic legislation.
During the negotiations, the Government successfully agreed a package of safeguards clarifying the scope and interpretation of the charter. Four measures in particular have been established: the new wording of article 6 of the treaty on European Union, the charters horizontal articles, the official explanations accompanying the charter and the binding protocol on the charter.
I shall deal with some of those items in detail, but first let me reassure my hon. Friends the Members for Elmet (Colin Burgon), for Dagenham (Jon Cruddas) and for Hemsworth (Jon Trickett), and my right hon. Friend the Member for Oldham, West and Royton (Mr. Meacher), who raised important issues about the Laval and Viking judgments. The legally binding charter and the protocol will not affect the European Court of Justice case law in those cases, in which the ECJ held that the right to take collective action was already part of EU law, as reflected in article 28 of the charter. That right, however, is subject to national laws and practices. The protocol does not reduce or limit charter rights; it simply makes clear how they apply.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.
The horizontal articles in title VII of the charter, especially articles 51 and 52, define the field of application, scope and interpretation of the charter. They clearly state that the charter is aimed at EU institutions and member states only as they are implementing EU law. In addition, the official explanations, which indicate the source of the rights and principles contained in the charter, have been published together with the charter in the Official Journal of the European Union. I have already mentioned article 6, which states that due regard must be given to those explanations. By setting out the
sources of and limits of the provisions in the charter, the explanations show that it does not create any new rights, but simply reaffirms rights that are already recognised in the law of the Union and in member states own national laws.
The combination of those three measuresthe wording of article 6, the horizontal articles and the official explanationsmakes the charters scope and interpretation absolutely clear. However, we listened to concerns expressed about, in particular, the charters alleged interference with United Kingdom labour and social laws, and for the avoidance of any doubt we negotiated a fourth safeguard. It consists of a binding protocol, originally proposed by and for the United Kingdom but later extended to Poland. My right hon. Friend the Lord Chancellor went into some detail about the content of the protocol, and I shall not repeat what he said.
Mr. Gauke: Perhaps the Minister will answer a question put to the Lord Chancellor that he did not really address. If a country that does not have the benefit of the protocol takes a case to the European Court of Justice, which, on the basis of the charter, makes a decision, why will that decision not become part of EU law, and therefore applicable to the United Kingdom under our general EU treaty obligations?
Bridget Prentice: That issue was raised a number of times by Opposition Members, which surprised me, given that the ECJs decisions have been binding since 1957 and the original treaty. They will continue to be binding in the same way.
Mr. Grieve: If I may say so, the Minister has not answered the question that she has just been asked. It was a very specific question, to which, surely, the only answer can be that in such circumstances the protocol provides no protection whatsoever, because the charter will have been applied in this country through its incorporation in European Union law in a decision concerning another country.
Bridget Prentice: Again, the hon. Gentlemans premise is false. No new rights have been created. Let me say to him, and also to the right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind) and the hon. Member for Aylesbury, that the protocols meaning and wording are very clear and that it is legally binding. It puts beyond doubt the fact that the charter simply cannot extend the powers of the courts to strike down UK laws, and that it does not introduce new justiciable rights.
My hon. Friend the Member for Hendon (Mr. Dismore) said that the ECJ would be subservient to the European Court of Human Rights, and he is absolutely right. The Courts primacy in setting European rights and standards remains. The hon. Member for Kingston and Surbiton (Mr. Davey) said that we had a great story to tell on human rights, and that we should tell it loud and clear. I agree, and on that basis I commend the motion to the House.