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9.15pm
Mr. Cash: I am sorry, but the hon. Gentleman fails to understand the point of principle that I am making, which is, very simply, that elections matter more than judicial judgments. That is my main point.
Mr. Cash: I should get ahead a little, because others definitely want to speak.
I should like to touch on how the European Court of Justice has operated, on the interaction in our constitution between the decisions taken in the House and those of the Court itself, and on what we can do about it. There is a world of difference between saying that we want to be able to legislate for ourselves and facing up to the fact that that presents certain constitutional problems in the light of the European Communities Act 1972. However, before I get to that, and because my main concern is about the rights of the people of this country to have the vote and to be able to use it properly, I should like to refer to chapter 5 of the charter. It talks about citizens’ rights, and mentions the
“Right to vote and to stand as a candidate at elections to the European Parliament”,
“Right to vote and to stand as a candidate at municipal elections”,
and so on. There is no reference to the right to vote to uphold the democracy of the individual member states according to their constitutional orders; this is to do with the European Union’s citizenship. In an intervention, I made a point about the Lisbon treaty. Whereas at the moment, citizens’ rights complement the rights of the citizens in the individual member states, the treaty says that those former rights will be in addition to the latter
ones, not complementary to them. That makes a substantial difference. I do not want to labour the point, but a new citizenship is being created. It fills in the gaps about which I remember complaining to my Government during the proceedings on the Maastricht treaty. I vividly remember that that treaty said that, as has been developed by the dynamics of other treaties since, the citizens’ rights will be subject to such rights, powers and duties as shall be developed in due course.
Mike Gapes: Given that the hon. Gentleman is introducing this debate and speaking as if from the Front Bench, and given the references that he keeps making to the Maastricht treaty, can he say whether he—and therefore his party—regrets the Maastricht treaty?
Mr. Cash: As I voted against it more often than any other Member of Parliament, my answer is yes, I certainly do. It was a fundamental and dreadful mistake. I also happen to believe that we have moved on since then and that the Conservative party is united in opposition to the Lisbon treaty. As far as I am concerned, everything is moving extremely well in the right direction. The hon. Gentleman will find that the problems he has just identified in this treaty—he did that by referring to the Maastricht treaty, which is part of it—will hit his party very hard on the head in due course. However, we will leave that one until later.
In the United Kingdom courts, case law is extremely important in respect of whether we are able to exclude ourselves, as the Government claim they want us to be able to do, from the charter of fundamental rights. There are Labour Members who would like the charter to apply, but we Conservatives do not want it to apply to the United Kingdom. I should like to touch on a number of important cases that need to be taken into account. The first is Macarthys Ltd v. Smith, on which the famous Lord Denning sat. He said:
“Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act—with the intention of repudiating the Treaty or any provision in it—or intentionally of acting inconsistently with it—and says so in express terms—then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.”
That could not be clearer. According to that case and that of Garland v. British Rail Engineering, which were both House of Lords cases, and the case of the metric martyrs—Thoburn v. Sunderland city council—the only way we could exclude ourselves from the application of the law of the European Union, which would include this charter on the basis of the analysis of the European Scrutiny Committee and my own and many other legal authorities’ assertions and judgments, would be by putting in a provision with the phrase:
“Notwithstanding...the European Communities Act 1972”.
I understand the problem that some people have with the fact that those words appear to invade the acquis communautaire, but I also know that we are committed to the idea of maintaining economic competitiveness, and we have statements to the effect that we will exclude ourselves, once again, from the provisions generally described as the social chapter or the social charter. The bottom line is that there are many provisions, including the working time directive, from
which we would want to exclude the United Kingdom in our vital national interests.
It is important to bear in mind the fact that there is only one way of achieving this, on all the analyses that have ever been put forward with any serious purpose. In the famous Factortame case, we got stuck, in relation to the Merchant Shipping Act 1988, by not including the words:
“Notwithstanding...the European Communities Act 1972”.
As Lord Bridge said in his judgment, the British Government decided in 1972 that they would agree voluntarily to accept the arrangements for the European Union under sections 2 and 3 of the European Communities Act 1972, and therefore, because they had agreed to it voluntarily, unless and until they were either to repeal or amend it, it was for all practical purposes the duty of the senior court in the United Kingdom, the House of Lords, to strike down that Act. So in the pursuance of a European Union policy and a judgment of the European Court of Justice, they struck down an Act of Parliament that had been passed by this House. That is a very serious matter. If we and the Government were properly and truly united on not wanting the charter of fundamental rights to apply to the United Kingdom, we would have to apply the same formula in order to achieve it.
We have reached a very important moment. We have an opportunity to take the steps, without weasel words and by being direct, to sort this matter out as the Bill progresses. We have this stage now and a further stage to come, and the House of Lords in due course. However, there is a problem, which I do not want to exaggerate but just to mention. I hope that the European Scrutiny Committee in the House of Lords—I say this with great respect to some very eminent people—in no way ends up, in the report that is coming out quite soon, disagreeing with what the European Scrutiny Committee has said in the House of Commons. I could go into this at greater length, but my concerns are considerable. There is by convention in this House a doctrine of comity, and it would be a great shame if we were to find that a serious disagreement emerged on the application of the principle that I have just enunciated.
All the material dealt with by other Members in the earlier debate about the way in which the European Scrutiny Committee handled the matter so expertly boils down to this matter, which is why it is essential that we remove the application of the charter by the effective words in my new clause. The conclusion of the European Scrutiny report states:
“It is clear that the Government accepts that the Charter will be legally binding, and it has stated that the Protocol is not an opt-out. Since the Protocol is to operate subject to the UK’s obligations under the Treaties, it still seems”—
we have been through this before—
“doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter. If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK’s other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation.”
“In our view, the only way of ensuring that the Charter does not affect UK law in any way is to make clear, as we have already suggested, that the Protocol takes effect ‘notwithstanding the Treaties or Union law generally’.”
It then says that that has been done in the context of the acquisition of property in Denmark and in respect of the Irish constitution, but
“it has not been made in respect of the Charter.”
The Government, therefore, stand condemned for not doing their job properly. In reality, the only way in which the Government can achieve their objectives of excluding this charter from the law of the United Kingdom is by adopting the wording in my new clause 6. It says, in a nutshell, that notwithstanding the European Communities Act 1972, nothing in the charter shall have effect in UK law, and it effectively also says that that provision should be binding on our judiciary. I say that because I believe absolutely and implicitly in this House. The only way we can deal with the essential question of maintaining its supremacy in relation to the charter, let alone the national obligations that would arise later, would be by doing what I suggest. As a final point, during the course of discussion, we may be able to find a means of wrapping up all my points on the way the treaty operates in relation to the UK. This is a hugely important issue. We are at a watershed—a point of no return. This is the Rubicon for the United Kingdom.
I have not quite made up my mind what I am going to do at this juncture. If I had the privilege of being able to move my new clause, I would do so. I am conscious of the fact that these are hugely important questions, and I look to those on my Front Bench to consider them because I have no faith in new clause 12. We may be able to come to some understanding about that in due course, but at this juncture the most important thing is that we retain the supremacy of this Parliament not only over national parliamentary matters and the Bill of Rights, but over the charter of fundamental rights. We should do something about that definitively during the course of these proceedings.
Jon Trickett (Hemsworth) (Lab): I follow the hon. Member for Stone (Mr. Cash) with some trepidation. I have sympathy with some of his points. He has made almost a lifetime’s study of European institutions and I respect that amount of learning.
I do not agree with the hon. Gentlemen’s reflections on the state of the national Parliament and the national Government. Decisions that affect the daily lives of our co-citizens cannot be controlled totally by a national Parliament, given the way in which economic and social powers are subject to global, certainly multinational, forces. With some reluctance but also realism, I accept that there must be a European transnational dimension to our politics. Without that, we cannot attempt to control the forces that are now at play, or prevent them from being further unleashed. Those forces can contribute to the general welfare of mankind if properly controlled, and for those reasons, one accepts that there must be transnational co-operation between Parliaments and Governments.
9.30 pm
Bob Spink: Does not the hon. Gentleman accept that 13 articles of the charter derive at least partly from interpretations of ECJ case law, which it establishes and can control in future? Does he believe that we should hand over to European institutions such as the ECJ that amount of control over law making in this country? Does he believe that his constituents want that?
Jon Trickett: If the hon. Gentleman has listened to any of the points I have made on previous days, he knows perfectly well that that is not my position. I shall deal with the ECJ shortly.
I have found the experience of our discussions on Europe frustrating because many of my hon. Friends and perhaps others want a proper debate about the way in which the labour market will be regulated and our response to the economic forces that are now at play and appear to escape democracy’s power to control them. There is a sane Labour voice to be expressed and heard on that matter, but it has failed to be properly expressed and the Government have failed to respond to it.
As I said during our discussions on the programme motion, the Government tabled a series of debates on generic issues, which favour their slightly rose-tinted view of the treaty. I asked for—and I believed that I had been given an assurance—a proper debate. With no disrespect to you, Sir Alan, we have not yet secured it. I believe that that is down to the business managers. We therefore have to attempt obliquely to raise the issues that we want to discuss. We did so earlier today in the debate on human rights and now we are doing so through the amendments.
I want to consider amendment No. 203 briefly before reverting to the knotty problem of the ECJ. I shall tackle the latter by referring to the charter. It will be no surprise to anyone who has listened to my comments and those of my hon. Friends that I want to concentrate on chapter IV of the charter of fundamental rights. The Government are in an unusual, even extraordinary position of saying, on the one hand, that there is no opt-out—my hon. Friend the Minister for Europe said that in the previous debate when we exchanged ideas—and, on the other, claiming that, according to their interpretation, the charter will not extend to UK law. On the other hand, there is the anomalous position of title IV, which is entitled “Solidarity”, but which for some reason a clause in the protocol says,
“for the avoidance of doubt”,
will create no new justiciable rights in the United Kingdom beyond those Acts of Parliament that are already agreed or which will be agreed in future.
The phrase “for the avoidance of doubt” strikes me as anomalous, given that the Government’s position is that there is no doubt about the rest of the charter. The charter is not meant to create any further justiciable rights in the United Kingdom beyond those enacted by Parliament. We have heard the Government say that on a number of occasions. If there was no doubt about that, why was it necessary to include the phrase “for the avoidance of doubt”? There must be some doubt about the rest. Having listened to comments by hon. Members from all parts of the House, I have some doubts about whether the rest of the charter could create additional justiciable rights.
However, I want to focus on title IV and the signal that it sends the European Court of Justice. We are in an anomalous position, whereby the rights contained in title IV have been distinguished, by the phrase to which I have referred, from all the other rights in the charter of fundamental rights. We have to ask why that clause was added to title IV. If that was not done simply to appease the business lobby, which was extremely vigorous and close to the former Prime Minister, one has to ask how title IV is substantially distinct from the other titles in the charter.
I suggest that the inclusion of that provision creates an asymmetry, because when the charter and its implications come to be analysed and judged upon by the European Court, it will frequently have to strike a balance among the various rights contained within the charter. In striking those balances, legal minds will obviously be brought into play, but it is hard to escape the conclusion that some extremely fine judgments will be made that will stray from the purely legal and into the political. Indeed, the ECJ has already strayed into that area in making political judgments—it is not for me to ask about the political control through which the legislative processes of the EU can exercise some influence upon the ECJ, save to say it seems to be extremely limited.
In striking a balance among the various rights contained in the charter as a whole, the Court might be minded to reflect on the fact that the United Kingdom and Polish Governments have chosen to point a finger at title IV, which contains a series of fundamental rights that I would have thought few in the House would deny, including the right of workers to collective representation and, if necessary, the right to take strike action. There are many others, too, which are there for everybody to see. When the ECJ makes judgments in industrial or other disputes, it will be somewhere in the minds of the justices that the UK and Polish Governments have pointed a finger directly at the rights under title IV and said that they are not the same as any of the others, since those Governments have taken the step of indicating that the rights under that title will not create any additional justiciable rights in their countries.
Why was that done? As has been said, when the then Prime Minister came to the House and mentioned all the other achievements that he had gained, many of which were very welcome, he totally omitted to mention title IV.
In subsequent debates in the House, including today’s debate, the Government have failed to articulate any reason for title IV and all the rights contained in it to be treated differently from all the other rights in the charter. I asked the Secretary of State why that should be. He is currently collecting his papers: he is probably about to leave the Chamber very quickly, but that does not matter, because his reply is in Hansard for all to see. He said that the Under-Secretary of State for Justice, our hon. Friend the Member for Lewisham, East (Bridget Prentice), would give the explanation. I sat on the edge of my seat, as did my hon. Friends and, probably, Members in all parts of the Chamber. I listened very carefully to what was said by the Under-Secretary, but no explanation was forthcoming.
My hon. Friend the Minister for Europe, who is now in his place, told me that he would give an account of why the exemption was made, but when I asked him to summarise what he would say, he developed a very sound critique of amendment No. 203, tabled by me and signed by a number of my right hon. and hon. Friends. I must tell him that that is not what we are looking for. We are simple souls, and we want an explanation of why the Government decided to treat title IV and the articles therein differently from all the others. The ECJ has already created a legal precedent: it has already decided to prioritise some rights over others. My hon. Friends and I referred to them earlier.
The right of any EU company to establish itself anywhere in the EU is clearly one of the fundamental rights. It is in title II, as is the right of any company in the EU to provide services anywhere else in the EU. The ECJ has already determined that those two rights have priority over the rights of workers to collective representation. That was before the Government did what they did, but I can only imagine that what they have done will accelerate, exaggerate and possibly exacerbate any future decisions when the Court makes finely balanced and, I would argue, ultimately political judgments about the various rights in the treaty. That will often be at the expense of the ordinary people whom we seek to represent—increasingly so, because companies increasingly operate in a multinational framework.
I have looked carefully at the amendment which stands in my name and that of many of my colleagues—and which, incidentally, is supported by every trade union affiliated to our distinguished party—and I have no doubt that the issues I have raised resonate far beyond this place. Certainly they will affect the Minister’s constituency and his constituents as much as mine. Having looked carefully at the amendment, however, I do not think it achieves exactly what I wanted to achieve. I have discussed the matter with colleagues, and when the time is appropriate I shall not press the amendment to a vote. However, I hope that the Minister will be able finally to unlock the secret closet containing the notes that explain the curious and anomalous situation in which we now find ourselves.
Mr. Redwood: Tonight’s debate, like many of these debates, is about where power should rest. It is about democracy itself, especially in the context of the excellent amendment tabled by my hon. Friend the Member for Stone (Mr. Cash). I should like the amendment to go a little further, because I should like to see the sovereignty of a Parliament clearly reaffirmed and re-established in the laws that we enact when trying to tackle this rather difficult and refractory treaty.
This Parliament made itself great over many centuries because campaigners of all parties and of none—Whig and Tory, Labour and Liberal and Conservative—came together so often to assert the right of elected representatives in this House of Commons to make the laws and take the right decisions, and to face their electors in turn on the hustings so that their work could be adjudged good or bad and the necessary decisions could be made about the futures of MPs individually and of Governments who had exercised the powers of this House.
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