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It does not help, therefore, if noble Lords say that there is nothing new in this. The process will go on as before. The court is free to interpret the treaties in the way it wants and nothing that is put in the treaty—

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certainly nothing in the charter—can be safely relied on. It will, I am afraid, be reinterpreted by the court to expand those powers ever further. I therefore support the amendment.

Lord Campbell of Alloway: Lord Denning made the point some time ago that anything that this court interpreted as within its jurisdiction—and he appreciated that it had created its own jurisdiction—was supranational law, to which we were subjected. This was an objective view from a great lawyer, and that is where we have got to today.

Lord Slynn of Hadley: I was a member of the European Court of Justice for 11 years. I declare that interest without the overwhelming sense of guilt or shame that one or two noble Lords appear to suggest I should feel. As has just been said, it is clearly right that in some areas the European Court has developed important issues and principles and has created a structure for the Community which has been long established. It did not need a political motivation to interpret the treaty in those ways. The cases which have been cited with great skill—I was very happy to be reminded of them; I certainly could not have done it myself at this stage—were, however, all fully in compliance with the provisions of the treaty.

It is inevitable that the European court will be involved in questions concerning the interpretation of the charter. This will include working out the relationships that have already been indicated between the charter and the European Convention on Human Rights and between the Luxembourg court—the European Court of Justice—and the European Court of Human Rights at Strasbourg.

Regarding the decisions of the court in other areas, to suggest that if it comes to interpreting the charter the European Court of Justice is bound to run amok and do dreadful things is not borne out by the history of human rights. It is quite obvious that it was the European Court of Justice which introduced into the European Community the concept of fundamental rights. I believe that that has been to the great advantage of the European Union, not only the institutions but the states and their citizens over the years. In doing so, the court moved in a very moderate way, and here I am talking about the European Convention on Human Rights and the protection of fundamental rights.

It was not surprising that when the European Parliament and the Council of the European Community saw the way in which fundamental rights had been recognised as applying in the Community, although not specifically included in the treaties, they saw that they were necessary for the good health and working of those treaties. The European Parliament and the Council both expressed complete approval and full support for what had been done, and indicated that in the future, these fundamental rights must be regarded as part of European Community law. There was no criticism at that stage of the kind one now hears implied, that the court had got it all wrong in developing these fundamental principles. On the contrary, people accepted that what had been done was necessary and fully justified by the terms of the various treaties.



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As I have said, it is suggested that the European Court of Justice will run amok in some way, but let us look at what happened in the past when the court was developing these fundamental points, which were not expressed in the treaty and were not binding on the Community through the European Convention on Human Rights. The principles declared by the court were developed with what had been done in Strasbourg in mind. It was my experience that the court moved slowly in this regard because it was reluctant to take fundamental decisions on questions raised in cases before it where the Strasbourg court had not spoken, and where it had spoken, it was our practice to follow and apply as far as applicable in the Community the principles that Strasbourg had already laid down. I suggest that that attitude is likely to govern the approach of the European Court of Justice in dealing with fundamental rights issues in the future.

Finally, it was suggested some years ago that there should be a reference procedure similar to that between national courts and the Luxembourg court by which that court could refer questions on interpretation of the convention—and now perhaps in the future—on interpretation of the charter to the Strasbourg court. It was not adopted at the time, although it was suggested by my predecessor as Advocate-General in the court, and I do not believe that it is necessary now. But if difficulties were to arise, this could be looked at again. It may be that the Strasbourg court could be consulted in some way by the Luxembourg court in terms of the interpretation of these various rights and non-rights as set out in the charter. That may be something that should be looked at again.

All I suggest is that one should not be driven into a state of total fear and anxiety by the thought that the European court in Luxembourg may have, from time to time, to comment on the meaning or content of a particular fundamental right, and on the way in which it should be applied.

Lord Lea of Crondall: Perhaps I may ask the noble and learned Lord a further question; like other noble Lords, I have found his intervention extremely helpful. Some noble Lords have been adumbrating the theme of the European Court of Justice running amok. But is it not fair to say that that could not happen without redress?

Perhaps I may give an analogy from UK history. In the trade union world, the most famous case of the past 100 to 150 years was the 1901 Taff Vale judgment which overturned what we had thought was the common law right to strike. Parliament, under the then Liberal Government, of course reversed that judgment in 1906 with the famous words about tort and no court taking action in contemplation of a trade dispute. By analogy with, let us say, competition law, if the European Court found that the existing law meant such and such but the Community institutions realised that that was not what they wanted to achieve, and if there was a wish to change the rules governing competition policy through treaty or a decision of the Council of Ministers and the European Parliament, then that would, ex hypothesi, be binding on the European Court of Justice. Does the noble and learned Lord believe that something along those lines would

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be a fair way of looking at the limitations on the powers of the European Court of Justice?

4.30 pm

Lord Slynn of Hadley: As I understand it, certainly; once the court has spoken, the law is binding. However, through the co-decision procedure, it is always open to the Council—as it is to Parliament in this country—to change the law and the practice. That is what I have always understood democracy is about in this country. It is equally so in the European Union.

Lord Forsyth of Drumlean: Perhaps the noble and learned Lord could also help me; I found his speech very useful. I bear a scar because I was elected to Parliament and was a member of the Government who gave a manifesto commitment about implementing the Maastricht treaty and who secured the opt-out under the Social Chapter. I made many speeches and told people there was no possibility of the working time regulations being approved because we had a veto. However, the European Court decided that the regulations were a health and safety measure. That seemed an extraordinary decision in the face of the assurances given by the Government of the day and by elected Members. As this health and safety matter could be passed by a majority and could not be amended, we as Members of Parliament were unable to reverse it.

I am nervous about the conduct of the European Court because of that experience. That experience is why the noble Lord, Lord Pearson of Rannoch, has expressed concern about the Court running amok. I would not go as far as saying that, but that experience is at the root of our anxiety and nervousness. Can the noble and learned Lord help me on this?

Lord Slynn of Hadley: During my time there I never had any feeling that my colleagues were driven by political motivation or that they were setting out to achieve anything that was not clearly and expressly covered by actual provisions of the treaty. I never had any ambition to create a new Europe all of my own or to develop principles that happened to be dear to me personally. I believe that we all looked at the wording of the articles of the various treaties and gave effect to it. Giving effect to it sometimes surprised people. People who had never read the treaty thought that it was just a Common Market treaty. They had not read the social provisions; they had not even read all the economic provisions to understand what was included in the treaty.

I well understand that people react adversely to decisions of the Court. I have suffered from that not only in Luxembourg but, at different levels, in the courts of this country, including in the Judicial Committee of your Lordships’ House, of which I am grateful to have had the opportunity of being a member. People sometimes resent the decisions of the Court. Noble Lords who read the press sufficiently will know that even the courts of this country are constantly being assailed by those who write about these matters. There will certainly be decisions in future that some people will not like. What is essential is that one should be sure that the Court is genuinely

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seeking to give effect to the provisions of the treaty. For my own part, in the light of my time there, and from following what it has been doing to some extent since, I am quite convinced that that has always been its intention and its wish.

Lord Pearson of Rannoch: Can the noble and learned Lord answer two questions, which arise from his eminent intervention? He said that the Court’s powers are limited and that, although there is no appeal against the judgments as such, national parliaments and the Council and so on are free to revisit the judgments by going back, passing laws and reaching unanimity in the Council to reverse what the Court has said. Therefore, my first question is: can he give your Lordships any example of where that has happened since we joined the European Community in 1972, leaving out, I suggest, the Factortame case, where the United Kingdom Parliament attempted to reverse a treaty provision and a Court judgment, and failed? What examples are there of this theory in practice?

Secondly, does the noble and learned Lord feel that anything that he said disagrees with the judgment of the Court that I read out? I shall read one sentence of it again:

The Court went on to say that the treaties are,

and that those objectives should be—

Lord Bach: Perhaps the noble Lord will give way. Of course, he is entitled to speak as often as he likes in Committee, but I hope that your Lordships will forgive me if I remind the Committee that we are still on the first amendment on a very important subject. We have a great deal to go through if we are to complete the Committee stage in the agreed time. I wonder whether the noble Lord and others—I am not picking on him—would mind directing their questions briefly to those who have already spoken so that they can be answered and we can move on. I hope that the Committee will forgive me but I think it is time that that was said.

Lord Pearson of Rannoch: I sympathise with the noble Lord’s position but we are dealing with the powers of the Court of Justice, which are crucial to our membership of the European Union. We have had a very important and somewhat unexpected intervention from a former judge of that court. I had finished with my quotation and simply ask the noble and learned Lord whether anything that he said goes against that judgment of the Court—that it is there to make judgments in ever wider fields towards the construction of the unified Europe. What examples are there of when his theory has worked out in practice, and does he disagree with the judgments of the Court that I read out?

Lord Slynn of Hadley: In view of what has been said from the government Front Bench, I should like to keep both questions for a later amendment. Having looked at the amendments that have been tabled,

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there seem to be many opportunities for that to arise. However, briefly, the Court has said that the Community is moving to a state of greater unity, and if you read the treaty—even the first five or six articles—it is plain as a pikestaff that that is what it is required to do. The Court has on many occasions taken decisions in regard to the member states which are not popular but which have simply set out to achieve what the treaty is doing.

Lord Goodhart: I am delighted to follow the noble and learned Lord, Lord Slynn of Hadley. He has been a personal friend of mine for over 50 years and I greatly respect his judicial work. What he said today, he said with immense authority. I believe that he has far more authority to speak on this subject than any other Member of your Lordships’ House. He has done that today to great effect.

As I said at Second Reading on 1 April—a not entirely auspicious day—I believe that giving the charter legal status will serve a useful purpose. First, it fills in a black hole in the operation of human rights law in the European Union. Unlike the member states, the European Union is not bound by the European Convention on Human Rights, because that convention does not apply to acts of the European Union or its institutions. It applies only to acts that come within the member states, and the EU is obviously not a member state. While the ECJ can take into account the general principles of human rights recognised by the member states, there has until now been no clear definition of what those rights are. The charter of fundamental rights will provide not an ideal definition but certainly a considerably better one than we have now.

The effect of the charter is both limited and modest. As stated in its preamble, the charter reaffirms rights and does not create them. Article 51.1 of the charter states:

while, as stated in Article 51.2, the charter

The charter does not apply to domestic law, as the European Union Committee of your Lordships’ House makes clear in chapter 5, paragraph 60 of its extremely valuable and useful report.

The charter is far narrower in scope than the ECHR or the Human Rights Act, which apply to all acts in exercise of public authority except for Parliament itself. It restricts the powers of the European Union and of its institutions. It enlarges the powers to challenge EU legislation or activities. I agree with the report of the Constitution Committee of your Lordships’ House that,

Is the need for the charter of fundamental rights eliminated by the accession of the European Union to the ECHR? It is true that the charter and the ECHR have many similarities, and there is some risk that without a mechanism to solve this problem, the ECJ and the European Court of Human Rights may come to different interpretations of similar texts. For that

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and other reasons I would certainly welcome the accession of the EU to the ECHR, which would give the ultimate decision to the European Court of Human Rights if there was any divergence. As the report of the European Union Committee of your Lordships’ House says in chapter 5, paragraph 118:

Article 1.8 of the Lisbon treaty requires the EU to accede to the European Convention on Human Rights. Unfortunately, that is not quite as simple as it sounds. Such accession requires a new protocol, currently the draft protocol 14, to be ratified by all member states of the Council of Europe. The draft protocol has in fact already been ratified by all member states except for one. Unfortunately that member state is Russia, and Russia’s present attitude to the West makes it uncertain whether the protocol will be ratified in the near future. Perhaps the Conservatives, whose delegates to the Council of Europe sit in the same group as the Russians, might put some pressure on their colleagues to achieve that. The fact that there could well be a significant delay in the accession of the EU to the European Convention on Human Rights certainly strengthens the case for the charter, which reaches parts that the ECHR cannot reach. I do not see the charter as a threat to the United Kingdom or to our legal system. No doubt the charter could have been better—it is somewhat clumsy and sometimes long winded—but it is plainly a step in the right direction.

4.45 pm

The protocol on the application of the charter to the United Kingdom and Poland serves as a defence against largely imaginary threats. As the EU Committee pointed out in Chapter 5.87, the protocol is not an opt-out. I think that that is now generally accepted. It is a pleasantly short document among many long documents and states in its preamble that the charter does not create new rights or new principles. In Article 1, it states that the charter does not extend the present powers of the ECJ to rule that UK laws are inconsistent with the rights or principles of the charter. It also states, in Article 1.2, that the rights mentioned in Chapter 4 of the charter on social and economic rights are justiciable in the United Kingdom only so far as the United Kingdom has provided for justiciable rights in its own laws. It is almost certain that the social and economic rights in Chapter 4 of the charter are not justiciable in any event. However, if we are wrong on that, this protocol will prevent it. I disagree with what the noble Lord, Lord Waddington, said on that.

The effect of Article 1.2 is to remove the binding effect in the United Kingdom of ECJ decisions on social and economic rights in relation to other countries. It is possible that the law on social and economic rights may therefore vary between the United Kingdom and/or Poland and other EU countries. What will not happen is that decisions in relation to, let us say, France would also apply to the United Kingdom if that would be contrary to the clearly expressed intention of Article 1.2. Article 2 states that, in application to the United Kingdom,

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references to national laws apply only to the extent that rightful principles in the charter are recognised in the law and practices of the UK.

All the protocol does is emphasise and clarify the interpretation of the charter, which is already implicit in it. That was the broad view of the EU Committee, as set out in Chapter 5.103 of its report. There is no need or justification for any of the amendments in this group.

Lord Stoddart of Swindon: The debate so far has taken a direction which I had not anticipated. Until the noble Lord, Lord Goodhart, spoke it had concentrated mainly on the ability of the European Court of Justice to decide exactly what is and is not law. The noble Lord, Lord Goodhart, at least mentioned the charter—which it seems we are not going to discuss—the details of which are very important. The last time we discussed them was when we debated the treaty of Nice, although that treaty did not incorporate them in a judicial sense. The charter deserves a very close examination because some of its effects on British law will be very severe indeed. I will not go into all of them because we are clearly spending a great deal of time on this amendment. The noble Lord, Lord Bach, wants us to get on so I will try to do that.

The noble Lord, Lord Campbell of Alloway, mentioned Lord Denning. As the debate has concentrated on the powers of the ECJ, it is worth referring to a speech that Lord Denning made in this House on 31 July 1986. I shall read this summary of that speech:


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