Session 2010-11
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General Committee Debates
European Committee Debates

Charter of Fundamental Rights

The Committee consisted of the following Members:

Chair: Miss Anne McIntosh 

Brake, Tom (Carshalton and Wallington) (LD) 

Clarke, Mr Kenneth (Lord Chancellor and Secretary of State for Justice)  

Connarty, Michael (Linlithgow and East Falkirk) (Lab) 

Evans, Chris (Islwyn) (Lab/Co-op) 

Gardiner, Barry (Brent North) (Lab) 

Goodman, Helen (Bishop Auckland) (Lab) 

Grant, Mrs Helen (Maidstone and The Weald) (Con) 

Mordaunt, Penny (Portsmouth North) (Con) 

Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op) 

Shannon, Jim (Strangford) (DUP) 

Stewart, Rory (Penrith and The Border) (Con) 

Wallace, Mr Ben (Wyre and Preston North) (Con) 

Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Alison Groves, Committee Clerk

† attended the Committee

The following also attended ( Standing Order No. 119(6) ) :

Cash, Mr William (Stone) (Con) 

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European Committee B 

Monday 14 March 2011  

[Miss Anne McIntosh in the Chair] 

Charter of Fundamental Rights 

4.33 pm 

The Chair:  Does a member of the European Scrutiny Committee wish to make a statement? 

Penny Mordaunt (Portsmouth North) (Con):  The opening paragraph of the Committee’s communication on a strategy for implementing the European Union charter of fundamental rights sets the following scene: 

“Decisive steps have been taken towards a Europe of fundamental rights. The Charter of Fundamental Rights of the European Union has become legally binding and the Union is going to accede to the European Convention on Human Rights. The European Parliament and the European Council have made promotion of fundamental rights in the Union one of their priorities for the future of the area of justice, freedom and security. There is now a member of the Commission with specific responsibility for the promotion of justice, fundamental rights and citizenship, and the members of the European Commission promised, in a solemn undertaking before the Court of Justice, to uphold the Charter. More generally, the Lisbon Treaty is a major step forward in that it has extended the co-decision procedure, removed the pillar structure set up under the earlier Treaty, given the Court of Justice general responsibility in the field of freedom, security and justice, and confirmed the place of human rights at the heart of the Union’s external action.” 

From those words, it appears that respect for fundamental rights will be at the heart of EU action following the coming into force of the Lisbon treaty. The overall objective of the communication is to make those rights, as provided for in the charter, as effective as possible. The Commission therefore sets out what it plans to do to ensure that its officials respect fundamental rights when formulating policy or drafting legislation. 

More controversial, however, is how the Commission plans to enforce those rights. The communication states: 

“The Commission is determined to use all the means at its disposal to ensure that the Charter is adhered to by the Member States when they implement Union law.” 

That includes bringing infringement proceedings against member states in the Court of Justice in Luxembourg. 

Although the communication recognises that the charter applies to member states only when they implement EU law, it states that that will be a matter of fact and degree. Three examples of where a connecting factor would exist are 

“when national legislation transposes a Union Directive in a way contrary to fundamental rights, when a public authority applies Union law in a manner contrary to fundamental rights or when a final decision of a national court applies or interprets the Union law in a way contrary to the fundamental rights.” 

When the European Scrutiny Committee recommended the communication for debate, it asked the Government to explain during that debate how protocol 30, on the application of the charter of fundamental rights of the European Union to Poland and to the United Kingdom, would limit the application of the charter in the UK, because there is considerable doubt about what the protocol achieves. The doubt partly stems from the fact that the protocol is not drafted as an opt-out from the

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charter—unlike protocol 21 on freedom, security and justice policies—but as a clarification. The preamble to the protocol states as much, in noting 

“the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter”. 

The doubt also stems from the preamble’s affirmation that the protocol is 

“without prejudice to other obligations” 

on the UK and Poland under EU law. Such “other obligations” include fundamental rights that have been recognised by the Court of Justice as “general principles” of EU law. In other words, if the fundamental right has been considered, or in future is considered, by the Court of Justice to be a “general principle” of EU law, the UK is legally bound by it, irrespective of the charter and the UK’s protocol. 

Moreover, the preamble to the protocol declares that the charter indeed reflects existing principles of EU law, and does not create new rights. It states that 

“the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles”. 

That led Jean-Claude Piris, former legal counsel to the Council of Ministers and the European Council, to state in his book on the Lisbon treaty: 

“One could tentatively conclude that Protocol no. 30 should not lead to a different application of the Charter in Poland and the United Kingdom as compared with other Member States.” 

His is an authoritative but not a lone voice, and many other academic commentators have raised similar concerns. 

We would therefore be grateful for clarification from the Secretary of State on those issues. As he knows, they are of great importance to the House. In particular, we ask him to do three things: first, confirm our understanding that the UK’s protocol is not an opt-out from the charter; secondly, say whether the rights in the charter are existing principles of EU law, and therefore binding on the UK, irrespective of the charter and protocol; and finally, with respect to the three practical examples given by the Commission about when it would take enforcement action against any member state, say whether protocol 30 would prevent the Commission from taking such action against the UK if similar circumstances arose in the UK. 

The Chair:  I call the Secretary of State to make an opening statement. 

4.39 pm 

The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke):  It is a brief opening statement. I thank those who arranged the debate, which I hope will clarify matters. The Government have accepted the proposed strategy, but this debate gives me the opportunity to explain why, and to set out, yet again, our precise position on the charter of fundamental rights. In all the debates on the Lisbon treaty, that probably caused more confusion than any other part of it for those who supported and those who opposed it. It is important that we are clear about what it represents and its impact, if any, on the UK. 

The charter was put in without the intention of creating any new fundamental rights for European citizens, beyond those that already existed. The advocates of the

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charter believed that it was a failure of the treaty that it nowhere set out the accepted body of fundamental rights that had underlain the Union for a long time and which had been applied by the European Court of Justice in a process that can be traced back to the 1960s. It was thought necessary to start codifying it by setting out the charter, which was attached to the treaty in the way we now see it, and which is now legally binding. It is our very firm belief that it brings together in one place the various rights and principles that already had effect in European Union law pre-Lisbon. It did not create any new rights or extend the circumstances in which individuals can rely on those rights to challenge national laws. It simply restated and made more visible the pre-Lisbon situation, which was incorporated into European treaty law in the form of the charter. 

Although this is a brief introductory statement, I think it will be a theme in my replies to any points that get raised. The then British Government and the other Governments accepted that the charter did not create any new principles or rights. There was a considerable debate about it, which I remember, because I took part in it. It was challenged, most particularly in the United Kingdom and in Poland. For that reason, protocol 30 was negotiated and put in place to protect the United Kingdom and Poland. However, it merely sets out what everybody believed to be the position. The then British and Polish Governments insisted it should be set out explicitly, because of what my hon. Friends will doubtless say were not wholly unreasonably fears in Britain about what it might mean. To set suspicions at rest, the protocol was therefore negotiated. 

In answer to the first question from my hon. Friend the Member for Portsmouth North, the protocol is not an opt-out but a clarification of the position. It clarifies it in a most important way. It sets out the boundaries around the charter by confirming that it neither creates nor extends any rights to EU citizens outside those that had existed pre-Lisbon, and it emphasises that member states are required to comply only when giving effect to EU law. It makes it quite clear that it does not apply any new rights or have any impact on existing UK or Polish law. So I would describe the protocol as a belt-and-braces approach to the underlying principles of the charter of fundamental rights. I have explained what the Government believe the charter of fundamental rights does, which is to restate existing principles. The protocol was negotiated by the UK and Polish Governments explicitly for people who do not share that belief and who wish to be satisfied further. The protocol states in the clearest possible terms that it can confer no new rights or have any new impact on UK law over and above that which existing European law applies. 

The Commission has now produced a strategy, which has given rise to this debate. The Commission’s strategy merely ensures that the Commission will be bound by the charter of fundamental rights in its own activity. It ensures that there is now an arrangement in place within the Commission so that it will be bound by the charter of fundamental rights in all that it does, particularly in initiating proposals and conducting its side of business in the European Union. It will have an application to member states, but only when they are acting on the basis that they are implementing European Union law. 

Although it is described as a strategy, I am not sure whether it is a vast leap into a new process. The whole thing is based on fundamental rights that existed pre-Lisbon.

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They were applied pre-Lisbon and they have now been codified in the charter. The meaning has been underlined by the protocol in the case of two member states. The strategy now commits the Commission and the member states, when implementing EU law, to hold themselves bound by a catalogue of rights and principles in the charter of fundamental rights. 

Barry Gardiner (Brent North) (Lab):  Will the right hon. and learned Gentleman give way? 

The Chair:  Order. There are no interventions at this stage. 

Mr Clarke:  What a happy eventuality! No doubt I will have an opportunity in due course to respond to points raised by the hon. Gentleman. 

The Government’s position is that the whole thing is a codification of the pre-existing situation and makes absolutely no difference either to the fundamental rights of citizens or to the obligations of member states under EU law. I hope that addresses part of the reservations—no doubt those reservations will be detailed—entertained by the European Scrutiny Committee. 

The Chair:  We now have until 5.33 pm for questions to the Secretary of State. I remind Members that questions should be brief. It is open to Members, subject to my discretion, to ask related supplementary questions. 

Helen Goodman (Bishop Auckland) (Lab):  May I say how nice it is to see you in the Chair this afternoon, Miss McIntosh? 

I was hoping that, with the Secretary of State talking about Europe and human rights, we would have some fireworks. But, if I have understand correctly what he has said this afternoon, it seems that the charter of fundamental rights will make no difference to anybody and the protocol, which is not an opt-out, will make no difference to the situation of the two countries that signed a protocol to a document that makes no difference to anything whatsoever. 

Mr Clarke:  That is the position I took when we debated the Lisbon treaty. 

Helen Goodman:  When I read the documents over the weekend I thought that the charter of fundamental rights might make a difference and limit what is sometimes thought in this country to be an overactive Commission. I am rather disappointed, and I would like the Secretary of State to comment on the fact that that is not quite the case as far as the Commission is concerned. 

The Commission will be able to interfere with people’s fundamental rights, if it judges that it is necessary or proportionate. At the point at which the Commission takes a view on other actors on the scene, however, that will not be the case. When legislation is being taken through, and the Council or the European Parliament are looking at any particular measure, the Commission will at that moment adopt all means at its disposal, including insisting on unanimity and annulment, to try to control what the Council and the European Parliament do. 

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First, the European Scrutiny Committee report states that the Commission will use the infringement or infraction proceedings against member states if they break the charter of fundamental rights. Could the Secretary of State comment on that dissonance? 

Mr Clarke:  It has always been the case that if a member state, when implementing EU law, implements it in such a way that it challenges the fundamental rights with which the EU has always complied, most of which are drawn from the European convention on human rights, that member state could face infraction proceedings. 

I have listened carefully to the hon. Lady, but I am not sure that she has said anything surprising. Again, I am driven back to what I agree is my rather disappointing argument that the charter of fundamental rights does not actually change anything. It has been the case for many years that the affairs of the European Union are governed by fundamental rights, not all of which are in the charter—some have been drawn from custom, practice, national law, and so on—and the Commission has always reserved the right to bring infraction proceedings on that basis. 

  Helen Goodman: I do not think that entirely answers my question, because, although I understand that the Commission can bring infraction proceedings against member states, the Commission is not limiting its own activity in the same way. Paragraph 3 point something or other of the European Scrutiny Committee report mentions that the Commission’s communication explicitly states that the Commission may interfere with fundamental rights when it is necessary or proportionate to do so. 

Mr Clarke:  I am sorry, I obviously misunderstood the point. The Commission is saying it can disregard fundamental rights itself, if that is proportionate. If the hon. Lady directs me to the reference to that, I will take advice on it. I did not realise that the Commission was taking on the power to disregard the charter, to which the strategy is supposed to bind it. 

Helen Goodman:  It is in paragraphs 3.10 and 3.14. I shall ask questions on other matters while the Secretary of State consults his officials. 

The Secretary of State answered the question on what the difference will be from having the charter; the answer is none. However, he has not quite answered the question: will Poland and the UK be in a different situation from the other member states? How does the charter apply to pre-existing European law? If a member state is implementing, through its national processes, pre-existing European law, and that is found to be in breach of the charter, will the Commission be empowered to act in that instance as well? 

Mr Clarke:  On the first question, my current opinion, based on the best advice I can get, is that Britain and Poland will be in no different position from any other member state, in the way in which the charter bears on them. The British and the Polish Governments were not

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satisfied, convinced or reassured by relying just on the charter. So the British and the Polish negotiated a protocol—which no doubt the other members states were quite prepared to let them have—which stated the same principle but in a slightly different way. In my opinion, the reason they got it was so that Ministers could go back to the British Parliament and the Polish Parliament and say, “We have an explicit protocol that sets out that this is not granting any new rights and is not placing any new obligations upon us”, and so on, as the protocol says. I am trying to get the wording of the protocol. 

If some sudden surprising judgment were made, I have no doubt that the British and Polish Governments would rely strongly on the protocol, saying, “You may suddenly have taken this rather startling view of the fundamental charter, but it cannot possibly apply to us, because we have restated it this way as well.” So far the European Court has not produced any unexpected or startling judgments, and I do not expect it to. 

As for the second point, all existing legislation, including that which pre-dates Lisbon, should comply with the fundamental rights and principles that have guided the European Union. If legislation has survived so far, it presumably has either not been challenged on the grounds of any breach of fundamental rights or it has survived the challenge. If anybody wanted to have another go at any pre-existing law, I have no doubt they would now invoke the charter, as well as go back to the Strasbourg court or judgment, or convention on human rights ruling on which they wish to rely. All I am saying is that it is the belief of the Government, on the best advice we can get, that the actual legal position has not changed. What will happen—and is beginning to happen—is that when human rights cases go before the European Court of Justice, it is developing a habit of quoting the charter, as well as the European convention on human rights, and pointing out the bits of the charter that are relevant to it. At any stage, anybody could seek to knock down any element of European Union law if they had some new argument about a breach of human rights that prevailed with the court. 

Mr William Cash (Stone) (Con):  I hesitate, but it is not unusual for me to disagree with the Lord Chancellor on matters of this kind, and of a legal as well as political nature. I ask him how he reconciles his idea that the protocol does not add up to much or make any difference, to the problem posed by article 1 of the protocol, which, I say this with respect, somewhat like the Maastricht treaty, he appears, by his own admission, not to have read? It says, 

“The Charter does not extend the ability of the Court of Justice of the European Union.” 

It is the word extend that is important. There is, therefore, a difference that has been incorporated. In fact, it is very much to do with the question of the application of economic and social issues. The European Court is thereby precluded from taking the same view of interpretation with respect to the UK and Poland as with the other member states. In other words, there is a difference. In particular, the European Court would have to apply protocol 30 in that respect. 

Mr Clarke:  My hon. Friend makes the usual disparaging reference to the Maastricht treaty, which I think I debated at greater length than any existing Member and I will not go back on that old canard, but really, I have

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taken part in debates on European treaties when I have not thought that I was the person in the room who had not read the damn treaty. In many debates on the Lisbon treaty, I appeared to be the only Member in the Chamber who possessed a copy of the treaties, as amended, which is the only intelligible document one can use to discover the contents of the treaty. 

As for extending the competence, article 6 of the treaty states: 

“The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.” 

The charter itself reiterates that point. Article 51.2 states: 

“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 in the Treaties.” 

It does not extend the Union’s policy areas. It does not bring in principles that have not already been applied. 

For that reason, on the face of it—certainly this is the view of both the present British Government and the previous British Government—the protocol repeats in different words what the charter represents. It has not been legally binding for very long, but so far nothing has occurred that requires anybody to invoke the protocol. The protocol was quite rightly drafted in response to parliamentary doubts being raised in both countries about the position of the charter and was negotiated as a reassurance, which Ministers could take back to their respective Parliaments, that it meant what everybody thought it meant. So far nobody has challenged that interpretation. 

It is true that not everything in the charter comes out of the convention on human rights, including some of the socio-economic clauses, but they were all found in EU law before then. The idea that one has a right to run one’s own business did not have to be set out in the charter. It is a restatement of a principle that had underwritten European Union legislation and practice years before. I understand all the feeling when we debated the Lisbon treaty. I went along and listened. People were in a state of high excitement about what they thought was being introduced by the Lisbon treaty. 

In my opinion, the best argument that could have been used against the charter was what was it for. It merely restates where we are already, which, although I have not been able to find it, was an argument that I canvassed myself at the time. People who were more federalist insisted that the treaties had to have inside them this restatement and codification of all the rights and principles upon which the European Union was based because they thought that they could then say to some sections of the public in some other countries that this is the basis upon which the European Union is founded. 

Time may prove me wrong, in which case the protocol may be invoked, but at the moment the protocol stands there as a different way of stating what everybody believes to be the nature of the charter. On the question from the hon. Member for Bishop Auckland, we cannot find her references to the clauses. 

Helen Goodman:  I am sorry I did not make that clear. It is paragraphs 3.10 and 3.14 on the first document—the extract from the European Scrutiny Committee on pages 3 and 4. 

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Michael Connarty (Linlithgow and East Falkirk) (Lab):  While people are searching for those references, which, by the way, quite frankly, I do not recognise as giving the Commission fundamental powers that it did not have before either, is the Lord Chancellor not concerned that the debate is prejudiced by the fact that in the original constitutional treaty, which was rejected, the plan was to fully incorporate the charter into the constitutional treaty and therefore give it primacy in EU law? When it came to the Lisbon treaty, however, the charter was taken out of that, and it has become a mere restatement of what we already had. 

If I recall, the biggest debate came from the trade union movement, which thought that article 30 would give the UK an opt-out, particularly chapter VI on solidarity—the rights of trade unions. I said at the time—and the Secretary of State probably agreed—that the unions were wrong. They continued to be concerned, however, even after the Lisbon treaty was passed. The measure took away no rights—it did not even give anyone the power to take away rights that were already fundamentally part of our trade union and employment rights. 

Mr Clarke:  My recollection coincides with the hon. Gentleman’s. There was a concern about employment law and the right to strike. The debate went in two directions. Some people in the trade union movement thought that the protocol was sweeping away protections they had under British law and giving the EU a route by which the UK could water down the right to strike in this country. 

On the other side of the argument, people thought that the protocol was somehow striking down British employment law and that it would give trade unions the right to strike regardless of strike ballots and legalities. In fact, the hon. Gentleman and I believe firmly—as do the Government, on the best advice that we can get—that the right to strike remains, but is subject to the national law of each and every member state. That was upheld in the Viking case, which was one of the cases that have been heard since the treaty was signed. 

Mr Cash:  To pursue the issue of the word “extension” and what it means, in a recent speech in 2008, Lord Goldsmith, and I imagine that the Lord Chancellor may have been briefed about this, accepted that the protocol was not an opt-out, but said that were the courts to 

“seek to conjure new or extended rights out of the Charter…the UK’s Protocol would indeed have teeth”. 

Does the Lord Chancellor have a view, or has he been offered one by his advisers, about what Lord Goldsmith may or may not have meant by those words? 

Mr Clarke:  I remember the quote that my hon. Friend cites and I have a similar one from a professor of European law at Cambridge university, Alan Dashwood, who said that as long as the charter were interpreted 

“in accordance with the horizontal principles and with due regard to the Explanations, there would not be any need for the Protocol. It has been provided just in case the paper tiger should acquire teeth, by an aberrant interpretation treating provisions of the Charter as capable of giving rise directly to enforceable rights. In that unlikely event, the United Kingdom would be able to invoke the clear language of the Protocol, to resist any challenge to its law or practices based on such a right.” 

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The two academics whom my hon. Friend and I quote do not always agree with one another, but they come to the same conclusion. If strange interpretations are suddenly put on the charter, Poland and the UK could turn to the protocol and underline that it makes it clear that nothing in the charter can give rise directly to any new, enforceable rights or changes in our legal positions. 

Mr Cash:  It is true that one might have expected the Court of Justice, in the normal course of events and given its jurisprudence, to strain every nerve—if not every gnat—to make certain that there were no incompatibility in the treatment by the Court of the UK or Poland compared with any other member state. To that extent, I sympathise and have some good appreciation of what the Lord Chancellor has said, because that would be the practice. Does he not agree that the problem is that the wording of any reasonable application of jurisprudence should mean that where a difference has been intended to be applied, it should be applied by the Court? 

Mr Clarke:  A few moments ago, I quoted one of the terms of the treaty and one of the terms of the charter itself. In both cases, I set out that it does not intend to confer any new rights. It restates existing rights and duties. Without encouraging my hon. Friend and myself to revive debates we have had in the past, with hindsight the best thing that anyone who got involved in some of the serious controversy—which there was between my hon. Friend and myself on the Lisbon treaty—can say about the charter is that it was a bit difficult to work out what it was for. It was people more Europhile than myself who insisted that all this had to be set out, codified and incorporated into the treaty. That made for a lot of laborious debate in the British Parliament. 

Now that the dust has settled, it is clear on the face of the charter, in the treaty, and in the commentary upon it, that it does not intend to extend any new rights, beyond those that already govern the European Union. The protocol gives us an added protection, in case the Court should try to go in that direction in the future. I do not accept that the Court will necessarily sail in this direction, but there are those that fear that the Court is constantly trying to enlarge its jurisdiction and the competence of the Union. It would be flatly defying the charter itself and not only the British and Polish protocol, if it ever tried to do that. 

Barry Gardiner:  I just wanted to clarify what the Secretary of State said. I understood him to say that the Commission’s strategy is that, in its own working, it should be bound by the charter. The question therefore is: how did it think it could do otherwise? If it thought it could not, why announce the strategy? If it thought it could, surely we need to know on what grounds it thought it could? 

Mr Clarke:  I am not a member of the Commission. As far as I can see, that it is what the strategy will do. The strategy sets out the basis upon which the Commission will bind itself by the charter of fundamental rights. There is a process under way inside the Commission,

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whereby one Commissioner is particularly designated to ensure that the rights and principles set out in the charter will be followed in all its dealing in future. It is a perfectly good question: why did it think it necessary to do that? It is another bit of flag waving, I think. It may be an unworthy suspicion, but perhaps the Commission wanted to put out something that it thought would publicise what it regards as the good side of the European Union and its impact on introducing fundamental rights and preserving them across the EU. The practical difference is not great, I would have thought. I hope that even without the strategy and before the strategy, the Commission was not intending to embark on a course that defied the charter. 

Barry Gardiner:  I take it, then, that the Lord Chancellor is not inclined to make a declaration in similar fashion that he intends to be bound by the law of the United Kingdom. Does he agree that the lesson of this is that when passing a codifying Act or codifying existing legislation through charter, it is best not to pass ancillary protocols, which say that such codification will be regarded simply and only as a codification within their own jurisdiction? That precisely suggests that other jurisdictions do not regard the codification as merely a codification and therefore implies precisely the very thing that one wishes to deny. 

Mr Clarke:  I think that, in the reality of European negotiation, there were two member states that had a particular difficulty in their national Parliaments in explaining why this charter was there. I cannot speak for the previous Labour Government of this country either, but I do not think that the then Prime Minister particularly wanted this codification in the treaty. They needed something to go back home to reinforce the argument to their critics that the charter was not introducing any new rights. I suspect that other member states thought that that was not necessary. As it happens, for reasons that I cannot enlarge upon—because I do not speak for them—the Czech Government have now decided that they want to join our protocol. I suspect that that has more to do with the domestic politics of the Czech Republic than it does with anything that has happened since the treaty was ratified. 

Helen Goodman:  I would like to draw the Secretary of State’s attention to the Commission’s report on practical operation and so on. It suggests that there are two areas that are particularly likely to have a substantive impact on member states. There are issues around asylum, because the charter of fundamental rights also applies to the European Union when it takes external action, and there is also the UN convention on the rights of the child. The document states: 

“In examining these issues, it was sought to ensure compliance not only with the Charter of Fundamental Rights but also with relevant international standards, in particular the European Convention on Human Rights, the Geneva Convention and the United Nations Convention on the Rights of the Child.” 

If the Secretary of State were to look at article 24 of the UN convention on the rights of the child, he would see that paragraph 2 is actually much stronger than the Children Act 1989. The UN convention on the rights of the child is not justiciable in this country, but many people think that it should be. It would be excellent if,

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through the charter of fundamental rights, the rights of children were strengthened. Is the Secretary of State absolutely content that, in the arenas of children’s rights and asylum, no rights are added through the charter of fundamental rights? Obviously, in practical policy terms, the point at which such issues become pertinent is in the debate about the closure of Yarl’s Wood. 

Mr Clarke:  I am sure that the Commission draws attention to those two areas, because they are the areas where such arguments most frequently arise. That is extremely important in the case of the rights of the child and always relevant when arguing about asylum. It remains our opinion that the charter does not add any new rights over and above those that exist. Therefore, the passages referred to are merely pointing out that those are areas of policy where attention has to be trained more frequently than usual to the kinds of the human rights and civil liberties that have been underlined by the legislation of the EU and its member states. 

On the UN convention on the rights of the child, no new points have arisen in this particular debate. It is an important issue that is debated in the House of Commons from time to time. So far, nothing has arisen, in which the charter of fundamental rights has been invoked, that cuts across the position that we have always taken on the convention. 

While I am on my feet, I have an answer to the previous question, which is that paragraph 3.10 of the report says that the Commission’s impact assessments will consider the necessity and proportionality of any interference with fundamental rights. When considering impact, it is actually saying that one could argue that it is one’s fundamental right, but it is so unbelievably trivial that it does not override the main objective of the legislation, which has wholly desirable origins. That could be borne in mind. It rises occasionally in this country, but I cannot see it happening often. It does, however, reflect the fact that many rights in the charter are qualified, and interference with a proposed right may be justified if the interference is justified and the right is not breached. The same is true of proceedings against member states, which can argue that their interference with protected rights is justified and proportionate. Apparently, that argument is open at the moment, but so far it has not been raised under the charter of fundamental rights. 

Helen Goodman:  I have one last question about the practicalities of implementation. The Commission says, rather optimistically, that it hopes that every European citizen will be aware of the charter and of their rights under it. In particular, it refers to something called the e-justice portal. Will the Secretary of State tell us what the e-justice portal is and how we find it? 

Mr  Clarke: It goes back to the origins of this subject. There are people on the continent of Europe who are more pro-European and in favour of the European Union than I am. When Giscard d’Estaing held his original conference, a great number of delegates were ferociously pro-European and thought that it was an opportunity to make a great march forward into a more integrated Europe. One thing that got into their heads was that citizens did not understand the European Union and could not see enough advantages in it. They

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felt that if we produced a great charter of fundamental rights and underlined how that was the bedrock of all people’s liberties, we could then wave it about and change opinions towards the European Union. From the beginnings of that convention, all the way to the various reiterations of the Lisbon treaty, the referendums and so on, all that began to go. However, there are still people who believe that the charter of fundamental rights is of enormous political importance, if we could only get European citizens to know about that great statement of their human rights. 

As, in my opinion, a moderate Europhile who has taken part in British debates, the idea that people will get too roused by such a charter is fanciful. Most people have never heard of it and that is how the situation will remain, particularly when they hear the explanation given by me and Ministers in successive Governments that suggests the charter has not made any difference to the obligations that we already have under the European convention on human rights. I am sure that that is the origin of such phrases. Enthusiasts in the Commission believe that, if they advertise it widely enough, people will suddenly realise that the European Union stands for something more than a single market, regulations and a common foreign and security policy, and that it also stands for fundamental civil liberties and human rights. No doubt people will try to put that idea forward. The justice portal is, I think, the website operated by the relevant part of the Commission that advertises the great work it does in home affairs and justice. I am sure that a passionate defence is made in the justice portal of the charter of fundamental rights, trying to establish that it achieves all those things. 

I do not want to belittle the charter. In a sense, the fundamental rights it sets out have been accepted by the British for years and years. They are fundamental to the European Union and have been for several decades. We can all get excited about it, but I suspect that the Committee would be united in opposing any attempts to start eroding those rights, or to change British law in a way that took any of them away. It was originally a flag-waving idea for pro-European advocates looking at the next treaty, and it then became a subject of agitated debate in several member states. Some Governments tried to get rid of it and some insisted on keeping it in. The British and the Poles felt it necessary to get an explanatory protocol to reassure those with doubts. 

The Chair:  If no more Members wish to ask questions, we will proceed to debate the motion. 

5.17 pm 

Mr Clarke:  I beg to move, 

That the Committee takes note of European Union Document No. 15319/10, Commission Communication on Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union; supports the Government in welcoming the Commission’s work to ensure that EU legislation is compatible with fundamental rights; and notes the Government’s support for the principle behind Protocol No. 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, that the Charter does not give national or European courts any additional grounds on which to find that the laws of the United Kingdom are incompatible with the law of the European Union.  

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I will not add to the arguments that I have already provided, and in the light of what I have said, I commend the motion to the Committee. 

5.18 pm 

Helen Goodman:  Opposition Members will not oppose the motion; they negotiated the Lisbon treaty and the protocol, and took legislation through the House to implement those things. I am grateful to the Secretary of State for answering our questions. They served to remind us of and bring us up to speed with the progress made by the Commission in recent months and on that basis, we support the motion. 

5.19 pm 

Mr Cash:  The enthusiasm with which the two Front-Bench spokespeople have endorsed the proposals is not unexpected. After all, my right hon. and learned Friend the Secretary of State, for whom I have the greatest respect, as he knows, is, I think, the only person left in the House who voted for the Lisbon treaty and for the application of the protocol, and I certainly would not hold that against him because he is honest and straightforward in his consistency. It would, however, be amiss not to consider some of the implications of the charter. 

Although I made a rather general remark about the Maastricht treaty, it was for a reason, and I know that my right hon. and learned Friend will not take offence at it. If I did cause offence, I am more than happy to withdraw the remark, and he knows that perfectly well. 

The first reference in EU law to fundamental rights was in article 6(2) of the Maastricht treaty, and therefore the origins of the charter are embedded in those measures and those days. That article provided that the EU 

“respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms…and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” 

Stating that the rights guaranteed by the European convention on human rights are a general principle of Community law took us down a significant route. In this context, it has led to the problem that the ultimate effect of the agreement, which I will come on to in a moment, to include the charter of fundamental rights in the protocol to the Lisbon treaty—not protocol No. 30—was to give the European Court specific jurisdiction over a whole raft of matters, which, I am sure the Committee is relieved to hear, I will not read out. My right hon. and learned Friend knows—because he tells us, and I am glad to hear, that he has a copy of the treaty in front of him—that it is contained in chapter 3, “Citizenship of the Union and Fundamental Rights,” which has 46 articles, tabulated by reference to their derivation. 

That is important, because but for the fact that those matters were gathered into one pot under the jurisdiction of the European Court, there would be a raft of different potential sources of jurisprudence by which to define them. For example, article 4 of the charter of fundamental rights is on “Prohibition of torture and inhuman or degrading treatment or punishment,” which comes up

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frequently in the field of terrorism and deportation. The source, as we know, is the European convention on human rights, but the real point is that such an enormous number of general principles has been incorporated. Article 20 is on “Equality before the law,” which is described in the derivations as a 

“fundamental principle of every European national constitution and of Union law”, 

and article 23 is on “Equality between men and women”. Other derivations are the EC treaty, the European Social Charter, the 1989 Community Charter of the Fundamental Social Rights of Workers, and Council directive 76/207/EEC. That is all very well, but there is a vast amount of law in all that, and everybody in the Committee will be thoroughly relieved that I am not going to take them right the way through it, because I am not the slightest bit interested in spelling it all out—I just want to get it on the record. 

Article 30 is entitled, “Protection in the event of unjustified dismissal”. That would raise all sorts of questions about employment law, for example, if we wanted to make changes to our law on small and medium-sized business law, and I do not need to go into that. My hon. Friends well understand, however, that if we are to provide the economic freedom that we need to kick-start growth—we are looking forward to the Government coming forward with measures on that in the Budget—we need to weigh questions about the extent to which we can make adjustments to the law applying to those who work for small and medium-sized businesses against what the law provides. 

This is not, therefore, just an arcane and theoretical argument about sovereignty, legal theory or jurisprudence; it is actually about the practical manner in which we can make adjustments in the interests of dealing with the fundamental question of whether we can create growth, which is a much bigger issue than the deficit. If we cannot create growth, there is no way we will be able to bring the deficit down, so we are in a chicken and egg situation. 

Since the Lisbon treaty went through, the charter has had the potential to act as a restraint on the ability of any Government to make the changes that are necessary to provide the oxygen needed to meet the interests of all people, including the workers, whom the Opposition have, quite understandably and rightly, regarded as being their bailiwick for generations, although Conservative Members strongly believe that we are the ones who have looked after them. 

The reason for the differences I am talking about could be pointed up by attempts to produce legislation, which might then be struck down because—providing that there is no extension of competence, which is the key point—the charter kicks in. 

Helen Goodman:  The hon. Gentleman makes a good point. Is he also concerned that, when the Ministry of Justice introduced its proposals to cut legal aid, it had not taken account of article 47, which states, 

“Everyone shall have the possibility of being advised, defended and represented. 

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”? 

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Mr Cash:  Such things could easily crop up. In fact, if we were to have a really intensive, detailed debate, many such things would be thrown up. We have a very detailed list of provisions before us. The wording in question says: 

“Chapter VII, the final Chapter of the Charter of Fundamental Rights…contains general provisions, including the rules concerning the interpretation”— 

I emphasise the word “interpretation”— 

“and implementation of the Charter”— 

that, of course, is the role of the European Court of Justice— 

“which were discussed in detail in point The Charter is addressed to the institutions and bodies of the Union and the Member States when they implement EU law.” 

One of the increasingly obvious problems that we have with all this European stuff—I am getting this from private words that I have occasionally as Chairman of the European Scrutiny Committee—is that Ministers and shadow Ministers never appreciated the extent these provisions would bite on their activities when they took on their jobs as Ministers of the Crown or as shadow Ministers. That is very important, because the European Union and its legal system, and the role of the European Court of Justice have a significant impact on our daily lives. 

If we go back to an earlier period when the Court established its jurisprudence—I would rather say asserted its jurisprudence, because some of us believe that its assertions, particularly in the field of constitutional law, ought to be defied—it ruled that fundamental rights were 

“enshrined in the general principles of Community law”. 

In 1974, it went on to say that 

“respect for human rights is a condition of the lawfulness of Community acts”. 

The Chair:  Order. Could the hon. Gentleman bring himself back to the strategy that we are discussing this afternoon, rather than the Court’s broad jurisprudence, much as we are interested in that? 

Mr Cash:  I understand what you are saying, Miss McIntosh, and would obviously wish to comply with your suggestion, or ruling. However, we need to be in a position to understand what is actually being conveyed—I mean this with respect—somewhat contrary to the more general assertions made by the Lord Chancellor that really there is no difference. I am arguing that, because of the involvement of the Court by virtue of the strategy for implementing the provisions of the charter itself, the Court does have a particularly important role. It is precisely because of the Court, and not the generalised principles that are contained in the earlier Maastricht treaty, that we ought to be made aware in this debate of what was going on initially, and what will happen as a result of the strategy being implemented. It will affect how the courts apply the legal provisions. 

Article 6.1, which was mentioned earlier, is somewhat contentious for this reason. The compromise that was reached during negotiations on the Lisbon treaty—this is important, Miss McIntosh—was that the charter would not be incorporated in the treaty but would be given 

“the same legal value as the Treaties”, 

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which meant, none the less, that the legal effect would be the same as if it had been incorporated. On the other hand, article 6 also repeats the wording of article 51 of the charter—this is the bit that I mentioned earlier in respect of extension—that its provisions 

“shall not extend in any way the competencies of the union”, 

and that the 

“rights, freedoms and principles” 

contained within it should be interpreted with 

“due regard to the explanations referred to in the Charter, that set out the sources of those provisions”. 

It was on that basis that the previous Government argued in negotiations on the Lisbon treaty that the charter should not be incorporated in the treaties. I am afraid that in their attempts to argue that, and that the explanations should be legally binding so as to leave as little room as possible for the charter’s interpretation by the European Court of Justice and national courts, they were unsuccessful. 

The real issue, looking at the wording, is this: distinguished lawyers have already exchanged views on the subject, but it remains to be seen whether the prohibition that I have just read out against extending European competencies will have the effect of restricting the scope for application of the charter, particularly in the field of economic and social rights. It will ultimately turn on how the Commission goes about its business in that context and the manner in which the charter—to go back to what I said earlier—is interpreted by the Court of Justice. We are still therefore in the grey area of whether or not the Court of Justice will, in fact, use its power of interpretation, which it has used in a very judicially active manner in the past. I am prepared to bet very heavily that it will do so. 

Many other matters need to be touched on. The charter contains fundamental principles as well as rights. I am conscious that the Lord Chancellor will have his advisors here, but the difference between the two is not easy to distinguish. The manner in which the drafting of the charter has been made is often a matter of criticism. In essence, the difference is that rights, when infringed, give individuals a right of legal action, and such rights are usually associated with civil and political rights, as set out, for example, in the European Court of Human Rights. On the other hand, principles are objectives that may be implemented by EU legislation or by member states when implementing European law. Under article 52 of the charter, they are 

“judicially cognisable only in the interpretation of such acts and in the ruling on their legality”. 

That means that the principles can be invoked by an individual only once implemented under legislation. 

The Lord Chancellor might regard that point as a matter of indifference. I do not know but, on the jurisprudence, I am sure that he will be glad that Lord Goldsmith and Mr Piris, the former legal adviser to the European Commission—a distinguished lawyer whom I have met—take a different view. We have a curious position. Lord Goldsmith, who presumably was party to negotiating the arrangements for the Lisbon treaty, including the charter, gave his view to the British Institute of International and Comparative Law. By saying that protocol 30 would have teeth if it were applied, he was

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defending his position. By the same token, Mr Piris, who also negotiated it when he was legal adviser, is defending his position. 

There are contrary views, and the bottom line is that the charter makes no clear distinction between principles and rights, with the consequence that an article might contain both a right and a principle. The United Kingdom objected to the listing of rights and principles together—principles being more a feature of legal continental systems and typically associated with economic and social rights. Whereas such issues sound like generalised jurisprudence, they are, believe me, based on the fact that serious problems will arise on the interpretation, which is where I part company with my right hon. and learned Friend the Lord Chancellor, although he is probably right in his general assertion that most people do not know much about such matters, and they probably will not know very much more about them after the Committee has finished its deliberations. 

I take a rather simplistic view of such matters. It is important to get such issues on the record because, when the time comes, the courts will look at the manner in which they were debated in the House of Commons and use that as an aid to their interpretation. At least it will be on the record that I have drawn a distinction in light of the expert legal advice that we have received. 

Most of the issues regarding the UK protocol have been dealt with. I have mentioned them in interventions. I agree that the protocol should not be thought of as an opt-out from the charter—that may be some reassurance to my right hon. and learned Friend—and that article 1.1 is not drafted as an opt-out from EU obligations, but it is unlike protocol 21 on the opt-out by the UK and Ireland from title V of the treaty on the functioning of the European Union. 

The provisions in article 1.1 are a clarification. The key word in article 1.1, as I said, is “extend”. The article is an attempt both to restrain extension in the Court’s interpretation of the provisions and to clarify the manner in which the charter should be applied. Whether it will fall to the Court—I am sure that it will—is a matter on which I make no bets. The Court will deal with it in due course, and my bet is that it will use the powers in its usual fashion and extend, despite the apparent restriction or prohibition on doing so. The preamble to the protocol declares that the charter reflects existing principles of EU law rather than creating new rights, when it says: 

“Whereas the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles”. 

People frequently say that lawyers just bash on and make generalised statements, and that it does not really matter. However, we live under the rule of law, as I know the Lord Chancellor appreciates. We are in the middle of extremely delicate negotiations, discussions and votes on things such as prisoners’ voting rights. Those stem, as do many of the provisions in the Protection of Freedoms Bill, from ECHR rulings. At the moment, those have not been adjudicated by the European Court, but hon. Members should bear in mind what I have said about the list, which assimilates all the provisions together with the general principle of accession of the European

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Union to the ECHR. We are moving into newer territory than I suspect my right hon. and learned Friend is prepared to accept. 

At the moment, we are in the middle of a judicial situation regarding the case of Saeedi from 2010, which is currently subject to appeal and concerns the interpretation of the charter, the Government having conceded in the Court of Appeal— 

The Chair:  Order. May I stop the hon. Gentleman there? If the case is sub judice, we cannot discuss it, as he well knows. 

Mr Cash:  I was not going to discuss the case; I was just going to mention—it has nothing to do with the case as such—that the Government conceded in the Court of Appeal that the High Court had been wrong to hold that the UK’s so-called opt-out meant that the charter could not be directly relied upon. 

The Chair:  Order. Will the hon. Gentleman move on and conclude? We cannot discuss the particular case. 

Mr Cash:  I am not discussing the case as such, other than to say that it demonstrates that the Court of Justice has an ongoing role in such matters. In interpreting the case, the Court of Justice might or might not come to certain conclusions, but one thing is sure: it is within the Court’s terms of reference and role of interpretation, and it will have an impact on the matters under discussion in this Committee. 

5.44 pm 

Mr Clarke:  The fundamental difference between my hon. Friend and me is whether the charter introduces anything new and, if not, whether the Court will embark on some expansive course of action that will start to go beyond the terms of the fundamental charter and expose us to risk. I strongly urge the Committee to accept that there is nothing particularly new in any of this at all. 

I could give a long narrative. The Union was formed in 1957. By the 1960s the European Court was applying notions of fundamental rights. It is true, as my hon. Friend said, that they were not codified quickly, but as early as April 1977, when we had not long been in the European Union, the Parliament, Council and Commission endorsed a declaration that stressed 

“the prime importance they attach to the protection of fundamental rights, as derived in particular from the constitutions of the member states and the European Convention for the Protection of Human Rights and Fundamental Freedoms.” 

It confirmed: 

“In the exercise of their powers and in pursuance of the aims of the European Communities they respect and will continue to respect these rights”. 

As my hon. Friend says, and as he, like me, no doubt well remembers, article 6.2 of the Maastricht treaty in 1993 incorporated the same thing. 

In 2000, at the beginning of the process, before Giscard’s convention was set up, when the charter of fundamental rights was first proposed, its purpose was said to be in order to make more visible the rights of EU citizens. Even in the first Council conclusions, and in the recitals of the charter that appeared in 2000, the

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purpose was not to create new rights, but to make existing rights more visible and accessible. We have now moved to attaching them to the treaty, and we have that in front of us, but as I have already said, it is not intended to extend any rights. I have already cited the treaties of the EU. Article 6 states: 

“The provisions of the charter shall not extend in any way the competences of the Union as defined in the treaties.” 

Article 51.2 of the charter states: 

“This 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 in the treaties. 

That is the background, which is why I do not think the British or Polish protocols added very much. However, some in the House, whose vigilance on behalf of our national liberties I understand, feared that it would extend where we were, which is why we had the protocol. The then Prime Minister, Tony Blair, brought that back to the House of Commons and mis-described it as an opt-out. I do not criticise him too heavily—he had other things on his mind, and he obviously misunderstood his briefing. I do not think that there is the faintest prospect of the Court doing what my hon. Friend fears. As he says, the protocol will give teeth to that belief if it ever gets challenged. 

Mr Cash:  I think my right hon. and learned Friend may be slightly misconstruing what I said, although I am sure that he understands me. I was not suggesting that the Court would be able to go outside the legal base, which is another way of putting it. We all know that it cannot extend the competencies of the Union because the limitation on that is contained in the Lisbon treaty. We know all that; that is old hat. The issue, which remains the point of contention or disagreement between us, is that the Court has a tendency to, and a track record of enlarging its previous interpretations of provisions contained in the enormous list of matters that I referred to. That is the manner in which it extends, not by adopting a completely new competence. 

Mr Clarke:  All courts, in all jurisdictions, interpret the legislation that they have. I agree that there are cases in British and European law, where the courts, be it the European Court of Justice or the British courts, are said to have put an interpretation on legislation which moves things on. All I can say is that if there was such a risk, that could have happened before the treaty of Lisbon. The treaty has not added anything; it was always open to the courts to start making interpretations that caused difficulty. I shall keep out of all the cases before the European Court of Human Rights at the moment, but as far as the European Court of Justice is concerned, I do not think that it does have a track record of changing everyone’s perceptions of fundamental rights by applying the law that it has. As I have said, the protocol is there in case suddenly the Court produces something very startling. 

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My hon. Friend and the hon. Member for Bishop Auckland referred to particular provisions. My hon. Friend referred to article 30, which restates the protection in the event of unjustified dismissal. Again, if hon. Members look at the text of that article and the explanations, they will see that they make it perfectly clear that the article simply reflects existing EU legislation and leaves it entirely to member states to decide whether to give any rights going beyond that legislation. The hon. Lady, who got in a passing reference to a debate that we are having on other occasions on legal aid, referred to article 47, I think, and article 48, which are all about the right to an effective remedy and to a fair trial, the presumption of innocence and the right of defence. That is fundamentally taken from article 6 of the European convention on human rights, which we have been bound by since the 1940s, and it restates where we are. 

These are important matters because we are talking about human rights and civil liberties—things that I do not think are, in themselves, matters of serious controversy in the liberal democracy that we have in the United Kingdom. A statement of them is unobjectionable unless it changes our expectations in a way that is undesirable. 

I think that the charter itself, let alone the debate about it, is of more political and public presentation importance than it is of deep significance, because it does not actually change anything. It did not set out to change anything. It merely codifies what everyone believed to be the existing law before the treaty of Lisbon came along. It caused a great deal of excitement at the time. Certainly the last Government tried to prevent it from being attached to the treaty; the Prime Minister mistakenly referred to the protocol as an opt-out and all the rest of it, but here we are, a year or two later. I certainly do not think that the Commission’s strategy, which gives us the startling news that it proposes to regard itself as bound by the charter in its own activities and that member states should be bound by it when applying EU law, is of deep political significance or any threat to our constitution. I hope that I have reassured the Committee on that point. 

Question put and agreed to.  


That the Committee takes note of European Union Document No. 15319/10, Commission Communication on Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union; supports the Government in welcoming the Commission’s work to ensure that EU legislation is compatible with fundamental rights; and notes the Government’s support for the principle behind Protocol No. 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, that the Charter does not give national or European courts any additional grounds on which to find that the laws of the United Kingdom are incompatible with the law of the European Union. 

5.52 pm 

Committee rose.