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Lord Monson: My Lords, before the noble Lord sits down, will he justify his use of the word "xenophobic" to describe people who wish to retain national sovereignty? Whom do they hate?

Lord Lester of Herne Hill: My Lords, of course, there are two different strands of thinking among the Little Englander party or the Little Scotlander party. One strand is the straight states rights strand, which is worried about federalism. Another strand regards anything which is not distinctively English as, of itself, likely to be inferior and, therefore, distrusts a European Court, European principles, the European charter and European law. Those two strands often merge in the same group but sometimes they are separate. They are passionately and sincerely held views with which I respectfully disagree.

Lord Pearson of Rannoch: My Lords, before the noble Lord sits down, when he uses the word "xenophobe", does he include someone who believes that the forced and possibly premature conglomeration of disparate nations in Europe may lead to conflict, whereas a free trading association of democratic states is less likely to lead to conflict? I would just like to get it straight. Is one a xenophobe if that is what one believes? What is the noble Lord's definition of that word "xenophobe"?

Lord Lester of Herne Hill: My Lords, the concept of xenophobia does not include somebody who takes a different view from someone else about the machinery for the good government of Europe or of this country. That is not xenophobia at all. But a xenophobe or a Europhobe is somebody who believes that the British, or the English, as the case may be, are uniquely and innately superior to lesser breeds beyond English law who operate in the rest of Europe.

12.12 p.m.

Lord Plant of Highfield: My Lords, first, perhaps I may say how privileged I felt to be a member of this committee, chaired so brilliantly by the noble and learned Lord, Lord Hope of Craighead. In particular, I pay tribute to the legal assistants and legal clerk who helped me to understand the extremely complicated legal consequences of the idea of the European Union becoming a signatory to the European Convention on Human Rights. To sit among what was, in the striking phrase of the noble Baroness, Lady Billingham, a "barrage of barristers" was certainly a mind-stretching experience for someone whose academic trade has been very different.

It seems to me that the present initiative which we are discussing today is desirable and inevitable. I reached that conclusion somewhat reluctantly, but I think that it is true.

First, the European Union is not and could not be just an economic entity, certainly not since the single market. There are several reasons for that. First, there

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is the general point that markets must be embedded in institutional frameworks and that failure to attend to the link between markets and strong institutional structures has caused major problems; for example, in the attempt to turn Russia into a market economy. We must always bear in mind the relationship between markets and the wider institutional setting within which they operate and on whose legitimacy they draw.

Secondly, a single market will require robust institutions to ensure a level playing field for market transactions within that single market. So given that increasing range of competence for EU institutions, it seems extremely important to me that individual rights should be protected against the exercise of power by those EU institutions, both when they are acting directly and when member states are implementing EU policy.

A central theme of writing about the nature of markets and, indeed, capitalism has been that the rule of law is absolutely critical to markets. I agree with the noble Lord, Lord Lester, that for a single market, we need a European rule of law in relation to the inevitable exercise of power by European institutions. Part of that rule of law must be the protection of the personal freedom of individuals. That seems to me to be on all fours with the liberal democratic--in the lower case sense of that term--understanding of the nature of the rule of law. That is the liberal democratic ideal of the rule of law.

The proposed charter is one way of making sure that the European institutions operate with the same respect for human rights as member states, when acting in a wholly domestic capacity, act in respect of the ECHR. There is almost a Groucho Marx kind of issue in relation to the European Union and the ECHR in that member states must accede to the ECHR while the Union to which they are acceding does not. That is paradoxical. I shall return to that point.

The European Union cannot be, and is not, only an economic unit. So it can be argued that a set of basic values must be asserted as being foundational to its institutional identity and, indeed, its institutional legitimacy.

That is particularly important in two contexts: the first is enlargement; and the other is in relation to existing member states--for example, as regards the situation in Austria at the moment. If the EU is not only an economic entity, the test of membership cannot be only the economic one of preserving a liberal market order but also a respect for the basic legal and constitutional identity of the European Union itself. So it seems to me that there must be a set of basic values.

That is not something new. It is not something which has been discovered in the past year or two. As the report makes clear on pages 7 and 8, there were references to values even in the European Coal and Steel Community documents, in the Treaty of Rome, in the preamble to the Single European Act of 1987, and in Article 6 of the European Union Treaty so that

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fundamental rights and freedoms would be protected. So it seems to me that there is a basis of values here which must exist for institutions of this size, robustness and complexity to work properly. The charter is an attempt to articulate, to spell out and to make more concrete what those values may mean.

Having said that, there are obviously different views about the best way of handling the question of how those values might be articulated and developed in a charter. I am sure that the noble Lord, Lord Lamont, is absolutely right to say that that is as much a political as a jurisprudential matter. I do not believe that the exercise in which the Cologne council is engaged can simply be a matter of tracking and showcasing the rights that we already have under the EU treaties or EU documents.

There are three reasons for that. First, there is the vexed question of social and economic rights. That is quite a good example of why it cannot be just a jurisprudential matter. As mentioned by several noble Lords, social and economic rights may not be justiciable. I am not sure how we know which are and which are not, antecedently of a justiciable process being undertaken; nevertheless it is argued by some--I do not believe this myself, but I shall not detain the House with my quirky views--that there is a categorical difference between civil and political rights, on the one hand, and social and economic rights, on the other, in terms of their justiciability.

It seems to me that if there is a right to the protection of civil and political rights, the protection of civil and political rights runs up against exactly the same sort of resource constraints and the need for rationing and fair distribution of resources as is true of social and economic rights.

My point is that there is a political issue about how far to incorporate social and economic rights. It is not just a jurisprudential matter. Of course, those political judgments will be informed, as the noble Lord, Lord Lamont, said, by considerations about global competitiveness, and so forth, rather than just theoretical arguments about justiciability. So it cannot be simply that we are tracking existing rights; there are political issues that have to be resolved.

In listening to the evidence over the weeks in which we were involved in this process, the idea of tracking or showcasing rights that are somehow there seems quite difficult because some of those who gave evidence appeared to be a bit vague about where "there" was. There are different documents, different protocols, different treaties, and different aspects of the jurisprudence of the European Court of Justice. It was not clear what one was tracking. To a non-expert in this area, the range of matters seemed to be ambiguous.

The decision about what has to be at the core of the charter has to be a political one and not just a matter of tracking a set of already latent lights, as it were. Because of such political complexities and complications, I believe, at least at this stage of the evolution of the European Union, that it is best to stick as closely as possible to the European Convention on

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Human Rights. That is likely to be the least politically controversial. If social and economic rights are to be recognised or represented, they should be represented in a different document. As I said earlier, that is slightly counter-cultural or counter-intuitive from my point of view, as I do not believe that there is a vast asymmetry between rights. However, in terms of politics, I believe that there is a good case for putting social and economic rights in a separate charter.

Essentially, my argument about the centrality of the ECHR is a political one, and not a jurisprudential one. First, keeping to the ECHR would lead perhaps to the highest degree of consensus because it has been incorporated by member states. That is the Groucho Marx point that I made earlier. Secondly, subject to one or two conditions that I shall mention, it should create greater legal certainty than having a different set of European Union rights set out in a different convention or charter. Thirdly--in a sense, this is a point made by the noble Lord, Lord Lamont-- constitutions, like markets, do not exist in a vacuum. There is a danger in running too far ahead of public opinion and public confidence. We have to go over this slowly and surely. People in Europe and in this country are more familiar with the European convention and there are dangers in going way beyond that.

There is also the serious point made in the report that the more widely the rights are drawn and the vaguer they are, the more chance there is that the competence of the institutions of the European Union will be increased indirectly or by the back door. Whether the competence should be increased should be a matter of political negotiation and not of legal and judicial pronouncement or decision.

In terms of trying to stick closely to the European convention, there are three possibilities: first, direct accession; secondly, verbatim incorporation of the convention into an amended treaty; or thirdly, a new charter that would, nevertheless, stick as closely as possible to the text of the European convention. There are major dangers in trying to stick fairly closely, but not absolutely, to the ECHR.

In his evidence, Andrew Duff, talked about having a precis or a paraphrase of the convention. I believe that would be a terribly bad idea. We must keep as closely as possible to it. I fully support the judgment made in the recommendations of the report that we should look to accession as the neatest and most legitimate matter. I hope that the Minister will inform the House of the Government's attitude.

Any conception or theory of rights has to meet four conditions: it has to identify who are the bearers of the rights; against whom are the rights held; what is the right a right to; and in virtue of what does the bearer of the right hold that right. The document that we have produced answers all those points.

One point that has not been mentioned is whether the beneficiaries of the rights should be citizens of the European Union or people who are resident or just happen to be in the European Union. Page 38 of the

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report contains some wise words on that matter. It states that rights should be guaranteed for people in the Union, but goes on to say that,

    "we recognise that in respect of certain categories of rights, in particular those essential to the current notion of EU citizenship under the Treaties (such as the right to vote and stand as a candidate at elections for the European Parliament), it may be appropriate to make clear that these rights only apply to those 'citizens'".

Who is to be a beneficiary is an important issue. I agree strongly with the proposal in the report. It is a political issue and not a jurisprudential one. I believe that we need some political guidance on how we proceed.

12.28 p.m.

Lord Shore of Stepney: My Lords, I congratulate the noble Baroness, Lady Billingham, on her most courageous speech. Controversy has surrounded the generality of this issue. The report has been put together by a most learned den of lions which included, no less, a learned judge as the chairman, six QCs, three professors of related subjects of government and only one other person who matches the noble Baroness in courage, her colleague and mine, the noble Baroness, Lady Goudie, who is no more than a humble citizen among that tremendous company. That is courage indeed. I congratulate the noble Baroness, Lady Billingham, and look forward to hearing from her again.

I regret having to speak before having had the chance to hear the noble Lords, Lord Bowness and Lord Goldsmith, as they have been directly associated with this proposal. My noble friend Lord Goldsmith is the Prime Minister's chosen man to represent all our rights and to ensure that they are not jeopardised by any developments in Europe. That is a grave responsibility and too heavy for any two peers and two Members of Parliament to bear.

We must contain our excitement about this report, as it is clearly an interim proposal. We do not yet know what the charter will contain. We have a pretty good idea. No fewer than 50 proposals have been put forward, but they could change quite radically before being put up for approval by the European Council. Moreover, we do not know what the report's status is.

I decided not to make a long speech, largely because the noble Lord, Lord Lamont, has put the case with great moderation and outstanding force for proceeding carefully and with considerable reserve. However, I nearly changed my mind when I heard the noble Lord, Lord Lester. Several of his comments seemed to be a caricature of the arrogant Europhile, pouring scorn on the history and institutions of his own country. But then I realised he was only spoofing, and pulling our legs. It was just a tease, so we can, after all, move on.

I do not for a moment believe that, as the Minister, Mr Keith Vaz, says, this charter is merely a showcase for existing rights or an index of rights already accumulated. Why would so many high-powered people have been involved? With respect, it was naive of the committee to have looked simply at the two

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paragraphs in the Cologne presidential conclusions relating to that. Have we no knowledge, background or history to inform us? Is it just coincidence that all this arose during the German presidency, that it was the Cologne summit, that it was a German proposal or that the German Foreign Minister is an open, declared, passionate federalist? That is highly relevant.

The other great partner in these affairs does not perhaps wholly dominate but has a powerful influence, as well we know. I refer to France. I am surprised that no mention has yet been made of the French position. We have been greatly helped in this matter by a speech made on 26th April by the Minister's opposite number, a Mr Moscovici. That is an unusual name for a French Minister. The points he made are absolutely relevant and of great importance. They were politically motivated. For the French, the social provisions that go beyond the remit of the European Commission on Human Rights and the convention are important. They embrace a vast new area of social and environmental policy. The charter will give greater force to what I think they call the European form of contemporary capitalism. I understand that that is not wholly endorsed by my noble friends in Government, who like to adopt a rather different approach. To the French all this matters enormously and has been brought within the remit of this charter.

The French are still a bit uncertain as to whether they should go along with the Germans and argue for treaty status. The French are subtle and realise that there will be quite an argument. But they would like to have two stages. They think that after the first stage, with all its declaratory force, they can come back at the second stage and obtain treaty status. The charter was drafted under the chairmanship of the former German president, with the intention of it being turned easily into a treaty. That could not be much clearer. The French Minister says:

    "Finally, let's be realistic, the Court of Justice of the European Communities can already draw on the principle contained in the ECHR when it establishes its case law. In fact, pursuant to Article 6(2) of the EU Treaty, 'the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms', and the EC Court of Justice ensures that they are respected".

That makes the matter pretty clear. The charter merely reinforces what is already virtually there. That will do for the French. They are not without influence in these matters, particularly when they are working with their German partners.

The noble Lord, Lord Lamont, commented on several of the rights, but some of them are absolutely bizarre. Article 35 refers to a right for rest periods and annual leave. That is a fundamental human right! How trivial can you get. Article 39 is a lovely one: the right to reconcile family and professional life. That does take a lot of working out, but it must be left to the practice and judgment of ordinary men and women.

What will be the practical effect of this report? It is bound to give greater authority, in the broad sense, to all the proposals that will forward the European integrationist project, particularly in the vast area of

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anti-discrimination. It will justify the Commission introducing a spate of new directives to prevent discrimination on grounds of race--we are well ahead of it in that regard--gender, sexual practice and behaviour. There is no end to it, including the nonsense of interfering with the Armed Forces so that rank and file soldiers can take legal action against their officers outside the court martial system. I find that kind of juvenilia incredible.

My last point perhaps follows on from those examples, and here I disagree with the noble Lord, Lord Lamont. I do not believe that the solution is for the European Union to sign the 1950 European Court of Human Rights Convention. I remember that convention well. I remember why the British took the lead in setting it up and persuading others to agree it in post-war Europe. We were determined to ensure that, should anything like the ghastliness of the fascist and Nazi regimes reappear in western Europe, there would be a public place and voice for those who were being persecuted by them and those who were dissident from them. They would be able to have their day in court internationally, with the backing of decent men and women who in their own governments were following practices which we would generally accept as being right and proper. We have ended up not with those great principles being defended but with the trivia of interventions of the most juvenile kind.

My conclusion is certainly not that the European Union should sign up to the ECHR but rather that we should oppose it and propose instead a radical review of the ECHR and its conventions. We can then bring it up to date and make it something which we can again respect.

12.42 p.m.

Lord Bowness: My Lords, it was an unexpected pleasure for me and it has been a privilege to be one of the two United Kingdom representatives to the convention. Noble Lords will understand after this morning's debate that, when asked, I say that I am a representative "from" the House of Lords and I do not presume to try and be a representative "of" the House of Lords. Nevertheless, I can say to the noble and learned Lord, Lord Hope of Craighead, the chairman of the committee, that his report has already been mentioned by the UK representatives in the proceedings of the convention. Members of your Lordships' House will not be surprised to know that many members from other member states are already aware of its contents and appreciate its value.

There are two members of the United Kingdom Parliament in the convention. The other place is represented by Mr Win Griffiths. And I am grateful to the noble Baroness, Lady Howells of St Davids, who stands as my alternate in the event of my not being able to go to Brussels.

When I read the committee's report, two thoughts rushed into my head; a third came this morning when I recalled the noble Baroness, Lady Billingham, saying that I could claim a headache rather than give evidence. First, I wished I had had the report at the

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time I gave evidence. It might have been a more worthwhile experience for the committee and less gruelling for me, though I thank the chairman and the committee for their courtesy. Secondly, I wished I had had the report and its clear statement of the issues when the convention started its work.

The convention and its composition is set out in the report of the committee and I do not propose to go through that in detail. It is surprising that the United Kingdom press caught up with the convention rather belatedly, bearing in mind that it has been sitting since December. It was originally referred to by the Council of Ministers as "the body". Some members felt that that was somewhat unglamorous and chose to rename it "the convention".

As the report makes clear, the convention is to present a draft charter to the European Council prior to its meeting in Nice. The council then proposes to make a joint proclamation with the Parliament and Commission of the document as the European Union Charter of Fundamental Rights. That timetable seems to have speeded up as we have gone through the process, with the request that there be a draft ready for the Feira meeting, though there was little of settled substance that could be taken to that meeting.

I should like to emphasise that if and how the charter is to be integrated into the treaties is not a decision for the members of the convention. The members of the convention are charged by the Cologne and Tampere decisions to do a job. Whether or not we would have started from here is irrelevant. But the charter, if drafted, needs to be in a form which will enable it to be incorporated in the treaties if the European Council decides so to do.

It has been suggested that the convention is a political process. I do not demur from that. Nevertheless, it is worth pointing out that the convention chairman is Mr Herzog, a former president of the Federal Republic of Germany and a former president of its constitutional court. The members, whilst they come from political institutions, include many academic lawyers, former ministers, former prime ministers and two former secretaries-general of the Council of Europe. I must say to my noble friend Lord Lamont that it is coincidental that I am a lawyer; I go as a representative from the United Kingdom Parliament. So I accept the charge, if charge it be, that the discussions have a political element.

It surprised me that, when the press chose to report on the convention, it did so as though it had just discovered what was going on. It is worth reminding ourselves that all the papers and the submissions have been available on the Internet to anyone who wished to look. An open hearing was held at which many different representative organisations gave evidence. The applicant states are being heard next week in Brussels. Some who wished to have their views heard put their submissions directly on the website. Reference has already been made to the submission of the Bar Council of England and Wales. It gave a telling presentation pointing out the possible clashes of jurisdiction and conflict between the European charter and existing conventions.

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A great variety of organisations, including, not surprisingly, those concerned principally with human rights and the removal of discrimination, religious groups, the press, radio, television, property-owning interests, commercial interests, employers and employees all gave evidence. They all had strongly-held views as to what should be contained in the charter. I believe that many will be disappointed because the charter must not and should not be drafted in such a way as to raise false hopes. Inevitably those who take a somewhat antagonistic view towards the work of the European Union will describe the process as one set up to draft a constitution for a United States of Europe. But even if some members of the convention see it as a first step in that direction, it is far from the general view. Parliamentarians from other countries have no wish to infringe or subordinate the provisions of the constitutions of their own member states.

The majority, while recognising the desirability of ensuring the recognition of existing fundamental rights by the European institutions, recognise the very real risks that may arise from a charter which, if incorporated into the treaties, would possibly be interpreted by the European Court of Justice in a manner different from the established jurisprudence of the Strasbourg Court.

Whether to include economic and social rights raises difficult questions. Indeed, are they truly fundamental rights when compared with the right to life and dignity of the individual? As the noble Lord, Lord Plant of Highfield, said earlier, there is a large political dimension to the question. Members of the convention may share the aspirations implicit in the social and economic rights, but there are serious political differences as to how those aspirations are to be achieved and, therefore, details of delivery are a matter for the member states whose traditions in these matters vary greatly. Even members with generally similar political views from different member states have different views, depending on the traditions of their own member state, as to how these matters should be dealt with.

The noble Lord, Lord Goldsmith, the British Government's representative, has argued consistently, persistently, persuasively and, on occasions, I believe some of his colleagues would have said, even valiantly to ensure that the draft charter avoids the extension of any competence for the European Union and any conflict between the existing convention and the treaties.

Members' concerns about the charter being used to extend the power of the European Union are putting their faith in what are described as the "horizontal articles", which seek to limit the application of the charter to the European institutions and the member states when implementing Union legislation. The question is: will they do the job? In parenthesis, I should just like to point out to your Lordships that the business of the convention is an interesting one to observe in that, unlike most bodies within the United Kingdom, there is no one to advise the body itself. Of course, the noble Lord, Lord Goldsmith, has his

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advisers, as do other representatives. But everyone comes from a particular point of view and there is no "one set" of individuals to give an opinion to the body as a whole. Indeed, supporters of the charter acknowledge the potential for problems, even if the charter remains declaratory. Legal experts have acknowledged that even a declaratory charter could have a potential effect.

Many of those questions could be overcome if the EU signed the existing convention--the solution put forward not only by the committee of your Lordships' House but also, I believe, by the European Committee in the other place. But I repeat: it is not for the convention to decide whether the charter should be incorporated into the treaty. That will be a matter for the European Council. However, because that prospect exists, I believe that the convention has a responsibility to get it into a form that is acceptable to the governments and the parliaments of member states. It will be an important re-statement of fundamental principles that guide the Union. That message needs to be clear to the citizens and to those who aspire to citizenship.

I have to tell my noble friend Lord Lamont that I believe that the EU is not a mere market-place; it was not meant to be and it should not be. Nevertheless, accession by applicant states should not be made more difficult by the inclusion in the charter of what might be unattainable economic and social rights. It is obvious from the convention and proceedings that belief in the concept of a European Union (although not necessarily a federal state of Europe on the model of the USA) based on a common set of values--peace and prosperity--is as alive today as it ever was. I know that some will dismiss the convention and its workings as an irrelevance. But others, both inside and outside the convention, while sharing many of the concerns, wish to make it a workable reality. They are too numerous to write off as people living in the past with an outdated view of Europe. To stand aside completely from the process would be a grave political mistake, and not understood by our partners.

Within the convention the practical and political problems are being seriously discussed. Those of us who move among the members of the European Parliament and the national parliamentarians, know that there is no evidence of any continental conspiracy to subvert the constitution of the United Kingdom. The manic ravings of the Sun newspaper, obsessed with German plots (with or without the assistance of the French), do not assist in the holding of a rational debate. Unfortunately, more serious commentators are now suggesting that the current draft has settled the matter. There is much more discussion to come and, probably, at least another draft in the light of that discussion. The process if far from over. There are nearly 800 pages of amendments to the first draft and we are nowhere near a conclusion, or a final draft.

I submit that there is a need for the fundamental rights of European citizens and those living within its boundaries to be more visible, for the Union institutions to be bound by those rights and for the

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charter to be such and give expression to the ideals of liberty, democracy, respect for human rights, fundamental freedoms and the rule of law upon which the Union is founded. The report of the committee, chaired by the noble and learned Lord, Lord Hope of Craighead, is a valuable contribution to the serious debate that should take place on such serious issues.

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