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Compared with the United States Supreme Court, the European Court of Justice has had a short history that is not unlike the early history of that court. Neither the United States constitution nor the treaty of Rome contained any clause about the primacy of community law over national law, and yet within a very short time—in 1803 in the case of the United States, with the famous case of Marbury v Madison; and in 1964 in the case of the European Community, in the equally well known case of Van Gend en Loos—the United States Supreme Court and the European Court of Justice both declared that federal law, and European law in the case of the European Community, did indeed have primacy over domestic law.
Although the intensification of legal integration has varied over the decades, there is no doubt whatever about in which direction the European Court of Justice is going; and although the protocol refers to rights, it does not refer to interpretation. The real concern is that the arrival of the charter will affect the way in which the European Court of Justice interprets the law that currently exists under the treaties. It will be through that mechanism that its influence shall be felt.
The third conclusion I draw is that since the charter applies to the UK and to our courts, all our institutions will have the obligation to ensure the uniform application of European Community law. Does the protocol trump that general obligation? Mr Miliband was effectively asked that question, in a letter written to him on 11 July 2007, by the chairman of the scrutiny committee in another place. His reply of 31 July is recorded in the committee’s 35th report, and I apologise to your Lordships for taking you again to the text. It states:
“The UK-specific Protocol which the Government secured is not an ‘opt-out’ from the Charter. Rather, the Protocol clarifies the effect the Charter will have in the UK. The UK Protocol confirms that nothing in the Charter extends the ability of any court to strike down UK law. In particular, the social and economic provisions of Title IV give people no greater rights than are given in UK law. Any Charter rights referring to national law and practice will have the same limitations as those rights in national law. The Protocol confirms that since the Charter creates no rights, or circumstances in which those rights can be relied upon before the courts, it does not change the status quo”.
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Here the Minister omits to address the crucial problem of interpretation, which in the last resort is, as I hope I have already indicated, a matter for the European Court of Justice.
In commenting on the right honourable gentleman’s letter, the chairman of the committee very fairly pointed out that as the protocol is not an opt-out from the charter, and if the Government intended that ECJ case law based on the charter should have no effect at all within the UK, then the words in the preamble to which I drew the Committee’s attention earlier, “without prejudice”, should have been replaced by the word “notwithstanding”. In other words, instead of saying “without prejudice” to all the other obligations that Community law brings to the United Kingdom, it ought to have said “notwithstanding” all these other obligations.
The point has been developed by a number of other commentators in a slightly different context. It has, for example, been asked: “What if the European Court of Justice is called on to interpret a provision in litigation taking place in another member state where that provision is identical to provisions that are already on the statute book in the United Kingdom and the court makes a decision to change the interpretation of the law in the United Kingdom?”. If the protocol operates “without prejudice” to our general obligation to implement Community law, such a decision in another member state which is relevant to an obligation that we already have to the European Community would become the law in the United Kingdom.
The most obvious example, to which reference was frequently made in another place, is the working time directive. There are extremely powerful provisions in the charter regarding Title IV. If a matter such as the 48-hour week is considered in another jurisdiction, it is possible, because of the way in which the preamble of the charter is drafted, that a more rigorous interpretation by the European Court of Justice of a measure that is identical to the one in the United Kingdom will change the law in the United Kingdom.
An entirely distinct point relates to the second part of the protocol, which, curiously, refers not to all aspects of the charter but only to Title IV. The Committee will recall especially the words in Article 1.2. What do we make of this? Does it mean that Title IV is only one example of all the examples taken in the charter—in which case, to that extent, one can be relaxed—or does it mean that Title IV is singled out to get special treatment which is not accorded to the other parts of the charter? That remains unclear and I would be interested to know the Minister’s view.
The Committee will be extremely relieved to know that I am coming to my concluding observations, both of which are in the form of questions to the noble Baroness. It appears that the EU institutions are at last going to sign up to the European Convention on Human Rights. However, can the noble Baroness tell us something about the timetable envisaged by the member states, and, in particular, what mechanisms are likely to be put in place to allow appeals to the European Court of Human Rights on decisions of the European Court of Justice?
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My final observation also relates to the relationship between the European Court of Justice and the European Court of Human Rights. If there is litigation in this country about a decision which involves the charter and a dissatisfied party wishes to take that matter further and since the United Kingdom is already a signatory to the European convention and it is now perfectly possible through the Human Rights Act 1998 to raise convention matters in the domestic courts, what is to prevent an individual taking this matter up in litigation in this country on the grounds that the European Court of Justice had got the matter wrong and that the better view—if there is already a decision, or ought to be, if there is not yet a decision—is that held, or likely to be held, by the European Court of Human Rights? How does the Minister foresee these matters being handled in domestic litigation? I beg to move.
3.30 pm
Lord Lester of Herne Hill: I was about to ask the noble Lord, Lord Kingsland, a question, but I can now do it by explaining my opposition to Amendments Nos. 7, 87, 88 and 89. The noble Lord, Lord Hunt of Wirral, has added his name to this group of amendments and I am delighted to see him in his place. They are designed, in one way or another, to exclude the charter and the UK protocol from the Bill and from UK law.
Eight years ago, I had the privilege of serving on Sub-Committee E of the Select Committee on the European Union, chaired by the noble and learned Lord, Lord Hope of Craighead, when we prepared our report on the EU Charter of Fundamental Rights. Other members included the noble Viscount, Lord Bledisloe, my noble friend Lord Goodhart, the noble and learned Lord, Lord Fraser of Carmyllie, and the noble Lord, Lord Norton of Louth. What is noteworthy for this debate is that another member of the committee was the excellent noble Lord, Lord Hunt of Wirral.
We had the benefit of a wide range of experience. Our report, published on 16 May 2000 as HL Paper 67, identified in paragraph 119 as one of the significant gaps needing to be filled,
We described in paragraph 121 the charter as presenting,
- “a major opportunity for giving more effective protection to the individual in relation to the activities of the institutions of the EU. Translating the principles described above into a reality which is readily recognisable to the peoples of Europe and meaningful in their daily lives is perhaps one of the greatest challenges which confronts those who have been given the task of preparing the Charter”.
We noted in paragraph 126 that while,
- “a declaratory Charter might help to clarify the obligations of the institutions of the EU, it would not confer direct and tangible benefits on individuals”.
In paragraph 127, we observed that the line then being adopted by the Government ran,
- “the risk of appearing to be extremely negative when it comes to the practical protection of the individual against the infringement of rights by the EU institutions”.
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We identified in paragraph 128,
- “a significant gap, in that individuals in Europe are not fully protected against the misuse of power by EU institutions that breaches the ECHR. The individual’s ability to challenge a measure on fundamental rights grounds is more restricted where the measure is taken by an EU institution than it is where it has been taken by a national authority”.
The adopted charter and the Lisbon treaty meet the very approach taken by the committee of which I and the noble Lord, Lord Hunt, were members. I find it difficult to understand the justification for supporting amendments of this kind. Paragraph 1 of the new Article 6 of the treaty addresses the charter, which was absent from the old Article 6. It recognises the rights, freedoms and principles contained in the charter, giving them, as we had hoped, the same legal value as the treaties.
Amendment No. 87 would keep this out of the Bill, with the 10th paragraph of the preamble to Protocol 7 on the application of the charter to Poland and the UK reaffirming that references in the charter to the operation of the specific provision of the charter are strictly without prejudice to the operation of other provisions of the charter. Amendment No. 87 would also exclude the 12th paragraph, which provides that the protocol is without prejudice to the operation of other provisions of the charter. Amendment No. 88 for good measure—or bad measure—would exclude recital 12, stating that the protocol is without prejudice to other obligations devolving on the UK under Union law. Amendment No. 89 would exclude specific reference to Title IV of the charter, on economic and social rights, in the UK protocol from Section 1 of the 1972 Act.
Presumably, we legislate on the basis of evidence and informed opinion. The House has had the great benefit of three reports. One was by its Constitution Committee, which includes the noble and learned Lord, Lord Woolf, assessing the implications for the UK constitution of the Bill and the Lisbon treaty. That was published on 28 March. Another, the report of the EU Committee chaired by the noble Lord, Lord Mance—to which, I hope, I made some contribution—giving its impact assessment on the Lisbon treaty, was published on 13 March. There was a third report by the EU Committee some eight years ago, to which I have referred and to which the noble Lord, Lord Hunt, and I contributed. None of those reports contains anything in the opinions of the committees of this House that in any way supports amendments of the kind now before the Committee. The Constitution Committee’s report concluded in paragraph 67:
“We conclude that the change in status of the Charter from political document to having the force of a treaty would be less of a radical step than at first it may appear. This is because the Charter is declaratory of rights already recognised”,
in the legal systems of the UK and Poland. In other words, it adds nothing new. The EU Committee report reached similar conclusions, but in this case, as any noble Lord will see, we reviewed in great detail, on the basis of evidence, each and every right and principle contained in the charter to examine its effect. We noted in paragraph 5.68 that,
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- “declaring the Charter to be legally binding will send a clear message to all institutions and citizens within the Union about the EU’s commitment to uphold the rights set out in the Charter”.
I apologise for all these quotes, but they are necessary, I think. We said in paragraph 5.80:
“Since we consider that the Charter reaffirms rights and principles which already substantially exist, albeit in many cases only at an international level, we expect the effect of the change in the Charter’s status to be limited. Courts at both national and EU level will continue to refer to international treaty obligations to interpret the scope of fundamental rights and identify those fundamental principles which are general principles of EU law, whether or not the Charter becomes legally binding”.
All this is well known to the noble Lord, Lord Kingsland, who, like me, has had the benefit and burden of reading some of the Luxembourg judgments on these issues. We expect that reference to the charter would, if the treaty of Lisbon comes into force, become more frequent as the charter’s legally binding status would make it more straightforward for individuals to enforce rights that are guaranteed under international law. We also clarified the broad legal effect of the protocol in paragraph 5.103—I will spare the Committee by not reading it now.
During the debate in Committee on 22 April, the noble Lord, Lord Forsyth of Drumlean—who I am now delighted to see is in his place—accused Liberal Democrats of telling lies and practising deceit. The noble Lord is apparently unimpressed by Standing Order 33—
which was adopted by this House as recently as 13 June 1626. I hope that I shall not be found guilty of using “sharp and taxing language” in breach of Standing Order 33 when I say that the amendments tabled by the Conservative Front Bench, in this grouping, are manifestly ill founded and fly in the face of the painstaking work done by three authoritative committees of this House.
I agree respectfully with the Government’s legal opinions about the effect of the charter and the treaty in this context. Neither the charter nor the treaty threatens the integrity of our legal or political system in any respect. To the contrary—and this point has not been dealt with yet by the noble Lord, Lord Kingsland—we will have, enshrined in EU law for the first time, protection against the abuse of power by EU institutions. I would have thought that the Official Opposition would cheer and welcome something that will make the institutions accountable and uphold the European rule of law. It will do nothing to disturb the work of the Strasbourg court; it will clarify the relationship between the two European courts; and I have heard no specific example of any way in which it will undermine the political or legal system of this country. I therefore oppose these amendments.
Lord Lamont of Lerwick: I support my noble friend on the Front Bench and support Amendments Nos. 7 and 87. I do so with some trepidation, not being a lawyer myself. However, I think that the issues raised by the charter are ones on which all Members of the Committee should be allowed to comment.
Like other noble Lords, I have followed the progress of the Charter of Fundamental Rights. I was on the Select Committee when the Minister, Mr Vaz, appeared
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The Government also tried to strike down many provisions of the charter—for example, those relating to children’s rights. Obviously the Government themselves at one point had real concerns. The Government originally argued that they wanted the charter not to be legally binding. On 11 December 2000, the Prime Minister said:
“Our case is that it should not have legal status and we do not intend it to do so”.—[Official Report, Commons, 11/12/00; col. 354.]
Article 6(1) clearly states that the charter has legally binding status and, as my noble friend from the Front Bench emphasised, on exactly the same basis as the treaties.
Much has been made of the point that the charter creates no new rights, but even if we accept that—and I shall come to it in a minute—it remains a point of anxiety that the responsibility of the European Court of Justice will be greatly increased. Until now, the court’s role has been to interpret the treaties, directives and specific legislation. If the safeguards are not watertight, the ECJ’s jurisdiction will be extended to other areas. The rights that are to be its concern are expressed in very general terms. That is where there is a clear risk of judge-made law expanding massively.
3.45 pm
Of concern to non-lawyers is accountability. One of the problems with the way in which the EU works is the one-way street of so much legislation and the difficulty of reversing it, because to do so one has to achieve unanimity. If a judge in this country makes law and the Government disagree with it, they can, if they have a majority and the willingness to do so, legislate to reverse that judgment and be accountable to the electorate for what they do. A different system operates in the EU. It is extremely difficult for judge-made law then to be reversed unless it is unanimously agreed by the 27 members of the Council.
For that reason, it is extremely important to ask whether the safeguards that the Government obtained are really watertight. Nobody could criticise the Government for lack of effort or the number of elaborate devices—there are four safeguards in all. There is the protocol, particularly Title IV; there are the horizontal provisions, Title VII; there is the explanation of the origins of the rights that are included in the charter, which is, I regret, not in the Printed Paper Office; and there is Article 6 of the treaty, which explains how it
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Are all these devices effective? That the Government have resorted to no fewer than four—I know that this may seem a rather unfair point—and have gone to such ingenious, elaborate lengths to make the protocol watertight makes one rather doubtful of the assertion that the protocol was insignificant. My noble friend Lord Kingsland said that many academic lawyers had agreed with the opinion that the charter does not create new rights. I am certainly aware of many academic lawyers both in this country and abroad, including former commissioners and professors of law in European countries, who have doubted whether the safeguards in the legislation—the protocol that the Government have obtained—are watertight.
My noble friend Lord Kingsland referred to Article 1.1 of the protocol. I do not want to read it out again, but I draw the Committee’s attention to Article 1.2, which states:
“In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law”.
This is repeated in Article 2, where the last words are,
- “to the extent that the rights or principles that it contains are recognised in the law ... of the United Kingdom”.
So there could be a situation where the ECJ would adjudicate on rights, as long as they were expressed in UK law.
The Government have constantly returned to the theme—I am sure that we will hear it again—that the charter does not create new rights. As I said, perhaps that is not the only point. Vaguely and generally defined rights may easily become justiciable in a new way by a new institution. However, is it really true that the charter creates no new rights? The Commission’s website states that the treaty of Lisbon protects,
Article 13 of the charter says that,
That looks very much like a new right. The charter’s explanatory notes, which describe the origin of all the charter’s rights, confirm that that right is not recorded in any other treaty to which we are a party.
The explanatory notes also buttress the claim that there are no new rights, but some sources from which these rights are said to be derived, such as the European Convention on Human Rights, are not treaties to which the UK has been a party, although obviously not the ECHR. For example, Articles 5 and 50 are derived from the Schengen agreement. Additionally, in some people’s opinions, several articles deriving from the ECHR appear to have had their scopes considerably widened.
Many other points could be made about the rights. Some seem more like welfare rights, such as the right to a free placement service, which reads rather curiously in a document of this kind. Others are extremely vague and general; for example, the respect for private
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Lord Lester of Herne Hill: I am not sure whether the noble Lord is aware of the difference between new rights against EU institutions and matters that affect UK law. To take the example of personal privacy, we are now given protection against invasions of our personal privacy by the EU institutions, but in our domestic law that is already covered by Article 8 of the European Convention and the Human Rights Act 1998. One cannot confuse the two. I wonder whether the noble Lord is aware of the important difference between that which protects us against EU institutions under European Union law and that which protects us against British constitutional law, in terms of the right of privacy worded in identical terms in Article 8 of the convention and in the charter.
Lord Lamont of Lerwick: I am of course aware of the distinction made by the noble Lord and I am grateful for his intervention, which perhaps goes some way to answering the questions I raised about what is said in Article 7 about respect for private life.
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