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Lord Goldsmith: My Lords, I am afraid that that comment must have come from someone else. I do not recognise those as my words.

Lord Howell of Guildford: My Lords, I shall, therefore, reserve my approval for others. The comment came from a newspaper article. The noble Lord has obviously been wrongly quoted. I shall certainly do him the courtesy of letting him have the reference so that he knows where these words are attributed to him and can, if he wishes, take steps to dissociate himself from them. However, I thought that it was rather a good phrase.

Having listened to the debate and tried to be as balanced as one can, my own view is that this must be part of a process of expanding the European Union's powers and solidifying this type of constitution for the Union--not a limiting one but rather, I am afraid, an expansive contribution. I say that because, again, I rely on the report; indeed, it is a virtual Bible. In paragraph 81 it makes clear that the ambition is to extend the charter to all three pillars. But both Houses have been told that two of those pillars are supposed to be inter-governmental not supranational; in other words, they are to be controlled by the governments, and the rights restraining them, within the nation states. But, no, the ambition is to cover all three pillars, not just justice and home affairs but also the defence and foreign policy pillar. The determination is obviously there on

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every front to incorporate this into the treaties. I do not know whether that will be incorporated through the treaty of Nice, but it is there.

Finally, the determination is clearly there in Germany, where one's German friends feel very strongly about these matters. Germany's European policy demands that this becomes a part of the treaty structure of Europe, and we hear the same voice from the European Parliament in Strasbourg and in Brussels. The protection of individual rights, with which we are all concerned and want to uphold and need ever to be on guard about, is a long way second in this whole project. I am sad to see it so readily accepted that a charter of rights really is needed and that the further safeguard of the rights of citizens will be thereby secured rather than going the ECHR route. However, I suspect that the ordinary citizen will see more layers of unintelligible legalism and a still larger role for the power of European central institutions, all of which are in a bad condition--indeed, one commissioner described them as suffering from "heart failure"--and more judge-made law. I agree with a very eminent QC, Mr David Pannick, whom I believe I am right in quoting this time, who said in the Financial Times the other day:

    "It seems to be a complete recipe for chaos".

Far from being what I believe the noble Baroness, Lady Williams, described as a "great experiment in democracy", this charter will work against a free and democratic Europe and against Europe's vital diversity. I do not regard it as a pro-European endeavour; indeed, I believe that it will restrict and not expand our liberties. Of course I wish the noble Lord, Lord Goldsmith, and my noble friend Lord Bowness luck--and goodwill--with their attempted amendments. But I doubt very much whether they will succeed and whether the project upon which they have embarked will really carry Europe forward, or protect our citizens in the way that we desire.

2.48 p.m.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I, too, should like to take this opportunity to thank the noble and learned Lord, Lord Hope of Craighead, first, for tabling this important debate and, secondly, for the erudition and skill with which he outlined the issues in the report. The quality of the debate has been commented upon by other speakers, but I should like to join my voice to those who say that it has been of an extremely high standard--not least the maiden speech full of warmth and insight of my noble friend Lady Billingham. She showed great talent. I am sure that the valuable contribution she made today will be enhanced by the contributions that we shall hear from her in the years to come.

The tone of today's debate has been rightly set; it was a very balanced one. As I said, the usual erudition of the noble and learned Lord set that balance and we had rather a feast. Many of us expected to be treated

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to a real battle of the Titans--and, indeed, we were--but we have also had a cut and thrust and parry of the most skilful and delightful nature.

We started with the measured but clarion call of the noble Lord, Lord Lamont, which was immediately parried by the breadth and vision of the noble Lord, Lord Lester, the substance and balance of the noble Lords, Lord Bowness and Lord Plant, and of the noble Baroness, Lady Howells, and the fine speeches--I am sure we are all agreed on that--of the noble Lords, Lord Goldsmith and Lord Brennan. We heard the spice that the noble Lord, Lord Shore, added to the debate and the concern that was expressed by my very good noble friend Lord Bruce of Donington and the noble Baroness, Lady Park. The summing up of the noble Lords, Lord Goodhart and Lord Howell, was comprehensive.

Therefore I am tempted to say that as noble Lords have heard so many eminent lawyers speak in the debate they will have no desire to hear yet another and that I should keep my porridge cool by my own breath. However, I know that that will not do. Therefore I say straight away, and more seriously, that Her Majesty's Government very much welcome the publication of this thoughtful and erudite report. As with all Select Committee reports, we shall issue a memorandum in response which will, of course, also reflect upon some of the points raised today. I thank each and every member of the committee for their contribution to the work that has been carried out but also for their contributions to the debate.

Her Majesty's Government agree that the charter is an important exercise. We reassure noble Lords, particularly the noble and learned Lord, Lord Hope, and the noble Lord, Lord Lester, that Her Majesty's Government's position has been positive throughout. We have always seen the charter as an opportunity. The 1998 Eurobarometer poll in the UK showed that, when asked what they wanted to know more about, 46 per cent were interested in their rights as European citizens.

My honourable friend the Minister for Europe has spoken regularly on the charter's value. Properly constructed and presented, the charter should strengthen the culture of rights and responsibilities within the EU. This will have a powerful effect in reinforcing in the minds of those involved in drafting, taking and applying EU decisions the rights that citizens possess and the need to respect them. The Government welcome the conclusion in the report that an accessible declaratory charter would indeed have real value. That view has been endorsed by a number of noble Lords today.

I say to the noble Lord, Lord Howell, that implicit within the expression of those rights is the imposition of a clear duty. The balance which he seeks is inherent in the expression of the rights. Preserving legal certainty in that regard is just as important as enhancing visibility. My noble friend Lord Goldsmith in his fine and careful speech--some other speakers today have mentioned this--mentioned the legal complexity of the issues raised by the charter exercise.

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If we do not get it right, we could set back, rather than enhance, the protection of human rights in Europe. Therefore a positive but careful approach seems to be the right one to adopt.

As a number of noble Lords pointed out, in particular, the noble Lords, Lord Shore and Lord Bowness, the charter convention continues to work on its draft. I take this opportunity to place on record the Government's appreciation of the time and effort that my noble friend Lord Goldsmith has put in as the Prime Minister's representative. As a number of noble Lords have said, his commitment and expertise have been invaluable. The exercise has proved to be more time consuming than anyone could have predicted last year.

The convention has also benefited from the input of the four parliamentary representatives: my honourable friend Win Griffiths, the noble Lord, Lord Bowness, and their alternates, David Chidgey MP and the noble Baroness, Lady Howells of St Davids. I thank them for their work. However, I remind noble Lords that, whatever the outcome of the convention deliberations, it will be for Heads of Government, not the charter convention, to finalise the charter and to decide on its ultimate status and future when they consider the draft at the Nice European Council in December.

The United Kingdom's position--and therefore Her Majesty's Government's position--is clear. The Feira European Council next week will be a first chance for Heads of Government to take stock. At that meeting the Prime Minister will argue that a declaratory charter is the best way to raise the visibility of human rights while preserving legal certainty. In addition, he will spell out that to fulfil effectively its objectives set out by Heads of Government in Cologne last year, any draft charter should meet three key criteria.

First, it must preserve legal certainty. We must not weaken existing fundamental rights by creating legal or public confusion or competing jurisdictions, especially with the ECHR. We therefore very much endorse what has been said by a number of noble Lords in that regard. Secondly, it should contain existing rights--that is, rights drawn from the ECHR and the EU treaties--and the charter should not be a platform for new competencies, nor a launch pad for new EC legislation, nor a vehicle for removing member states' flexibilities under the ECHR and its protocols. Thirdly, it must be consistent with other EU policies and objectives, including the conclusions of the Lisbon Council.

It is particularly important that the charter should not involve the creation of new rights. The convention, although commendably transparent, is not equipped or constituted to be a legislative body. It has a more limited, specific task to do and, as the committee rightly said, not much time in which to do it. Cologne calls for the inclusion of existing economic and social rights, but aspirational objectives have no place. Proposals for new rights should be considered by legislators through the existing procedures, with care,

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deliberation, consultation of interested parties and so on. "Instant" new rights are not appropriate or acceptable.

A number of noble Lords said that there are significant gaps in the present level of protection of human rights within the EU. The Government are not persuaded that that is so. All the member states are parties to the ECHR and their national actions and law in the field of community law can be challenged in domestic courts, before the ECJ and, in some cases, before the European Court of Human Rights.

The committee and a number of noble Lords, however, have expressed that they see a gap in protection in relation to the right of an individual to complain about the acts of EU institutions on human rights grounds. This is in part a complaint about the rules of standing, which restrict the possibilities for an individual to bring before the ECJ a complaint about an act of an institution. As the committee recognises, it is not for the charter drafting body to tackle that issue.

Perhaps I may deal at this stage with a point raised by the noble Lord, Lord Goodhart, about the compliance of EU institutions with the ECHR and not being able to be challenged in the ECJ. That is not so. Article 46(d) gives the ECJ jurisdiction over that compliance. It is true that it is not easy for individuals to bring such actions because of the rules of standing in Articles 230 and 232 of the TEU, but actions by other institutions and member states can certainly be brought.

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