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Those are not my words. I am not clever enough to deliver such a judgment as that, made by one of our most famous Law Lords. However, if we take his view as correct, as I am sure we will, he really put the matter in its true perspective. The European Court will eventually decide whether the Charter of Fundamental Rights will be justiciable in regard to this country. The noble Lord, Lord Pearson, referred to a number of cases where the European Court has decided matters in spite of what Parliament felt about it and had decided. He mentioned in particular the Factortame case, which really established the superiority of the European Court because it forced a British Government to reverse an Act of Parliament which it had made to protect the livelihoods of Scottish fishermen. It reversed the decision of Parliament and of the British Government to protect their own citizens or a section of their citizenship. The result was that Spanish fishermen were allowed open access to Scottish and of course British waters and the state had to pay, I believe, between £200 million

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and £300 million in compensation. That confirms where the power really lies.

Before I sit down, perhaps I may read one or two quotations, if I can find them. The EU Commissioner Margot Wallström said:

By the Government’s own admission, 70 per cent of all legislation comes from Europe. Whatever they say, the charter will apply in a good many instances. Then there is the former EU justice Commissioner, Antonio Vittorino, who questioned the legal basis for the British opt-out from the Charter of Fundamental Rights and said that it would not work.

I ask the Minister: what is the view of the European Commission? Has its view been sought? If not, why not, and will it be sought now? The Commission is an important part of this business and it would be useful to know whether it agrees that our opt-out is watertight. I very much doubt that it will. With that, I support the amendment and those that go with it.

Lord Forsyth of Drumlean: I was fascinated by what the noble and learned Lord, Lord Slynn, had to say and was sorry that his exchange with the noble Lord, Lord Pearson, was curtailed. The powers, role and behaviour of the European Court are central to all this. I think that the noble Lord took it as a criticism of the Court’s behaviour, but I felt that the noble and learned Lord, Lord Slynn, was reinforcing some of the points made by the noble Lord, Lord Pearson. When he said that everything the Court had done was consistent with the treaties, that was precisely the point the noble Lord, Lord Pearson, was making. It was not consistent, however, with what those of us who are pro-Europeans—

Noble Lords: Oh.

Lord Forsyth of Drumlean: I notice some laughter from the Liberal Benches. They are so pro-European that they cannot think of a single amendment to put down for discussion in the consideration of this treaty. I voted yes, and have always supported Europe. One of the reasons I have been so opposed to the tendency towards centralisation in Europe is that I believe it will destroy the European project because we will end up with an institution that does not carry political consent and where people are unable to make changes that affect their lives. That is what will destroy Europe, and those people who wish to hasten the process of federalism and integration are actually the enemies of the European ideal because they will destroy it. There is no monopoly of wisdom here.

Lord Hannay of Chiswick: I am grateful to the noble Lord for giving way. Having sat and listened to my noble and learned friend Lord Slynn, I did not draw the conclusion from his words that the noble Lord, Lord Forsyth, appears to have done, nor did I think that one single word that he said in any sense validated the fears that have been expressed about the Court of Justice. My noble and learned friend said that the Court applied the treaty. What on earth does the noble Lord, Lord Forsyth, think it would do otherwise? What does he think it was set up to do? Of

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course it applies the treaty. My noble and learned friend said clearly that in doing so it was not politically motivated but motivated by its position as legal minds set up under the treaty to apply it.

Lord Forsyth of Drumlean: I say to the noble Lord, Lord Hannay—I have to be careful about asperity of speech—that I thought the Court was doing what he and his former colleagues in the Foreign Office told us, when we were in government, that it was doing; that the Court would look at the terms of the treaty itself in the way that we in this Parliament are used to looking at the terms of the Bill. Instead, the Court has looked at the wider considerations, and the noble and learned Lord, Lord Slynn, pointed to that. The noble Lord, Lord Pearson, gave several examples—I do not want to detain the Committee by repeating them—of judgments that showed the Court taking the view that it was part of its role to promote a wider and closer European Union in interpreting specific areas of law. So I thought that the noble and learned Lord, Lord Slynn, was being supportive of the argument of the noble Lord, Lord Pearson.

5 pm

Lord Lester of Herne Hill: Perhaps I may—

Lord Forsyth of Drumlean: I shall make this point and then I shall give way. The argument of the noble Lord, Lord Pearson, was that the Court was not behaving other than by looking at the acquis and the treaties and was doing something that was perhaps not anticipated by some of us. His concern in respect of the amendment is how we can have confidence that this process will not continue. That is the question that I should like the Minister to deal with. Like some of us who have been in government, she may find in the future that, having said things and given assurances on the basis of advice from officials and others, they turn out to be wrong because the European Court behaved in a particular way. That is my concern. I give way to the noble Lord.

Lord Lester of Herne Hill: I am grateful to the noble Lord, whose asperity I enjoy. Does the noble Lord agree that his party has always stood for the rule of law as a fundamental principle of Conservatism? Does he further agree that, within the European Union, we have a system founded on the rule of law and that we entrust to the European Court of Justice the ultimate responsibility for interpreting and applying the treaties in accordance with the rule of law? The question then is: who other than the European Court of Justice is to decide, for example, whether the principle of subsidiarity is breached? Who else would he have decide these important questions of law? Would it therefore not be better to support the European rule of law and the European Court of Justice instead of attacking them?

Lord Forsyth of Drumlean: The noble Lord is absolutely right—of course we support the rule of law. However, there is another principle that we support. I refer to the principle of democratic accountability. What the noble Lord is not taking account of is that, if we have the European Court taking a view that promotes a

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wider Europe—or a deeper Europe or whatever expression one wants to use—and deciding, for example, that working time is a health and safety matter, it should be possible for democratically elected politicians in the countries affected to reverse that. Unfortunately, it has become more and more difficult to do that, particularly as the veto has been eroded in more areas of national life. I know that the noble Lord is committed to Europe—if not always to the manifesto promises on Europe that have been made by his party. However, if one has an institution that makes laws that people cannot change when they turn out to be bad laws, that institution will come into conflict and will undermine respect for the rule of law. I believe that it is part of supporting the rule of law to have institutions that are democratically accountable. My concern about this treaty, and the reason I support the amendment of my noble friend on the Front Bench, is that we may be walking into yet more areas where laws are changed in ways that do not carry consent, where Parliament is unable to intervene and voters feel frustrated. I thought that the speech made by the noble Lord gave some weight to that. Perhaps the Minister will explain how it will be different this time.

On TUPE, on working time and on a range of other things, we gave assurances that turned out not to be correct. I supported the Single European Act when I was Parliamentary Private Secretary to my noble and learned friend Lord Howe of Aberavon. I had doubts about it then. People argued that it would not be used to extend the competence of the Community. We were given assurances that this would not be the case, that it was the letter of the law that would matter and not the general spirit. So we feel “once bitten, twice shy”. I hope that the Minister, in railroading this legislation through the House, does not find that she, too, is bitten. I hope that she can give us assurances about that. I shall give way briefly.

Lord Lea of Crondall: I am most grateful to the noble Lord for giving way. This is the third or fourth time, on the first and second day of Committee, that he has taken as his principal example the working time directive. That was introduced under the health and safety provisions of Article 118, which of course preceded the Maastricht treaty—it was not introduced under that treaty. He has repeated the travesty that we were given specific assurances that the Maastricht treaty opt-out meant goodbye to the working time directive. I do not accept that anybody in Brussels would agree that such specific undertakings about the effect of the Maastricht treaty were given. It confirms that the European Court of Justice was not influenced by any wider political considerations but just by the question of whether health was centrally tied up with long working hours, which it found to be the case. We should not cast any aspersions on the European Court of Justice by suggesting that it had any wider political or other motivation. I can well understand that the fact that the noble Lord’s advice to the Prime Minister was wrong has got under his skin, but his history is woefully wrong.

Lord Forsyth of Drumlean: I shall try to deal very briefly with that. The Government may have been wrong, but we stood on a platform of maintaining

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workplace laws and conditions within the competence of the United Kingdom. The opt-out from the Social Chapter of the Maastricht treaty, which this Government gave away on being elected in 1997, was fought for hard, because there were concerns about the effects on competitiveness.

The noble Lord was correct on the timing of the working time directive. The point that I was making was that we had a clearly defined policy; we assured people that it was possible to deliver it, because it was subject to qualified majority voting—under Article 118A, if I remember correctly, but it was a long time ago. That was then overturned, because the Commission reintroduced it as a health and safety measure, with the European Court holding that working time was a health and safety issue, thereby stretching the elastic beyond a point of breaking.

That was a highly contentious and political decision, making it a matter that required unanimity in the Community and the Commission to bring it forward. It therefore became impossible for a democratically elected Government to deliver the policy in respect of working time on which they might have been elected. That was the point that I was trying to make, if perhaps not terribly expertly. I hope that the noble Lord now understands my concern about the role of the Court.

In respect of the future, I am concerned that the Minister may be in the same boat in thinking that she has all these red lines and has secured the position, only to find that the Court will continue to behave as it has done from the beginning, which is to promote a wider and deeper Europe and stretch the elastic to breaking point. That may very well damage the European Union and the institutions to which I know the noble Lord is committed.

Baroness Ashton of Upholland: I want to intervene on the word “railroading”, because I want it to be clear in Hansard that, before we determined the number of days in Committee, I consulted the Front Bench of the noble Lord’s party and that of the Liberal Democrats. I consulted the noble Lords, Lord Stoddart, Lord Willoughby de Broke and Lord Hannay, as well as the noble and learned Lord, Lord Howe of Aberavon. I have had an open session at 1 pm every day that the Bill has been in Committee—I believe that that has been on the Whip of all the political parties and has been made known to the Cross Benches. At no point has anybody come to me and said that we have inappropriate time or are being railroaded. The noble Lord, Lord Stoddart, has made representations to me that, because of his concerns, we should try to finish at 10 pm every evening. There is no suggestion in that of railroading. I have listened with great care to all the representations and at no point has anybody put that to me. I hope that the noble Lord will accept that he has had ample opportunity to put his points to me in other ways.

Lord Forsyth of Drumlean: The Leader of the House is always extraordinarily accommodating, courteous and helpful in Committee. That has been my experience. My reference to railroading was about an intervention on the noble Lord, Lord Pearson, who has tabled a number of amendments to the Bill

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and who is putting across a point of view that I know the Government do not share. When the noble Lord, Lord Bach, intervened, the noble Lord, Lord Pearson, was making a very important point—it is not often that we have an opportunity to speak to someone who was at the European Court. I felt that, if we pressed on—perhaps people felt that enough time had gone by—an important issue would be railroaded. I apologise to the noble Baroness if she felt that that was a criticism of her general conduct in relation to the Bill, but the Front Bench was being a little bit unfair to the noble Lord, Lord Pearson, in trying to hurry him on when he was making an extremely important point.

Lord McIntosh of Haringey: Is there any space at all between filibustering and railroading?

Lord Wallace of Saltaire: If there are problems with having only six days, we on these Benches would be quite happy to extend until midnight from now on in order to make sure that we get this through. However, I hope that it may expedite discussion on later amendments—since we have extended from discussing the charter to the role of the Court of Justice as a whole—if I ask the Conservative Front Bench, when summing up, to spell out its view on the role of the Court. In this debate, we have heard a number of noble Lords objecting to the idea of any foreign court having jurisdiction over British law and any limitations on the British Parliament.

The noble Lord, Lord Kingsland, will be aware that there is a parallel debate in the United States to the one that we are having in the United Kingdom on exactly this subject. Radical defenders of sovereignty—for example, Professor Alan Dershowitz at Harvard Law School, Justice Scalia on the US Supreme Court, the current Attorney-General, Alberto Gonzalez, and others —take the view that it is not possible to accept international law overriding US domestic law and that the expansion of international law, conventions and institutions cannot be allowed to affect the United States.

That is much the same argument as we have been hearing from a number of noble Lords, including Members on the Conservative Front Bench, about the European Court of Justice. I would like the noble Lord, Lord Kingsland, to clarify whether he shares that view. In the United States, it has led to an argument that says, “We cannot accept further UN conventions, particularly those that involve such human rights issues as the protection of children”. Leading on from that is the argument that the United States must reject the Geneva Convention and a whole host of other things, in defence of the sovereignty of the American constitution and the US Congress.

That is a similar argument to the one advanced by some noble Lords and which will no doubt be repeated on future amendments when we get down to the role of the ECJ in general. It would be helpful if the Conservative Front Bench would spell out whether it shares this view or has a rather more nuanced one. In a world that is increasingly globalised, we have to share sovereignty both regionally and globally. It is convenient on occasions to negotiate agreements within a European Union in which we share sovereignty with a rather

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smaller number of Governments of rather more like mind. There are positive aspects to that.

Baroness Ashton of Upholland: This has been an interesting and diverse debate. I am not entirely surprised to find that it ranged so widely across many of the issues. I say again to noble Lords that any interventions from the Front Bench have been to be helpful in reminding ourselves how much time we have and how much more we want to discuss. I have no fears about the ability of the noble Lord, Lord Pearson of Rannoch, to listen with great care to what is said by any of us on the Front Bench and then to make his own decision about whether he will continue to speak.

When I first started to talk to noble Lords about how we might construct our debates on the EU treaty, I proposed that we try to find a way of having a big debate on the European Court of Justice, as I knew that it would figure largely in debates on a number of occasions and I wanted, as far as possible, to be able to gather the main players in that, not least the noble and learned Lord, Lord Slynn, to inform us in our work.

I know that on the Conservative Front Bench there was a real desire, which I completely understand, to look at the issues line by line in the treaty. That is a completely reasonable way in which to approach it, but I am a little sorry that that did not allow us the opportunity to have what I would have enjoyed—a much longer, more detailed debate on the European Court of Justice. Some noble Lords may blanch at the idea of a longer and more detailed debate, but it is important to have that debate, not least because of the varying views that are expressed about the Court’s relevance, how it works, and the appropriateness of its judgments.

5.15 pm

I am very grateful to those who have participated. I shall take us through the amendments and deal with the issues that noble Lords have raised. I begin where several noble Lords began, with what we want to say about the rights in the charter. I agree with those noble Lords who have assured the Committee that the rights are not new; they already bind the UK and all the member states, whenever we implement European Union law.

I made some promises about whom I would quote, which I may have to stretch to answer one of the points that has been made. However, I shall try to restrict myself to Members of this House or another place or to that which is contained in the documents and reports of either House. My noble and learned friend Lord Goldsmith, who cannot be here today, made a speech to the British Institute of International and Comparative Law in January. Noble Lords will recall that he played a terribly important part in negotiations around the charter. I hope that we will have the opportunity at some point before we finish our deliberations on this treaty to hear from him. However, my quotation from him in a sense answers the question that the noble Lord, Lord Kingsland, raised about why we should have the charter. He said that,



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If we question the whole principle of the charter, we question those underlying rights, which the charter simply reports. Bringing existing rights together in one place makes clearer to citizens the rights that they can expect the EU institutions to respect, as member states already do when they implement EU law. The noble Lord, Lord Lester of Herne Hill, made that point in his contribution. In agreeing to make the charter binding, the UK insisted on a package of safeguards to provide greater legal clarity to define the scope of the obligations that a binding charter would place on the Union and the member states. These safeguards include improved charter general articles, improved explanations to the charter, an upfront reference to the charter in the Lisbon treaty and the UK-Polish protocol on the charter.

The noble Lord, Lord Lamont, rightly talked about the journey that the UK Government have made in their concerns about the charter. Our concern was that, drafted as a political declaration, it would be insufficiently precise and detailed to be made legally binding. When we negotiated around the now dead constitutional treaty, we secured improvements to the general provisions in the charter. We also secured agreement that the courts should take due regard of a detailed commentary on the charter—in other words, the explanations that identify the precise source of each charter right, a copy of which I would be very happy to give to the noble Lord, if that would be of use to him. While the Government were satisfied with the package secured in the constitutional treaty, we wanted to address continuing concerns about the effect of the charter on national law, so we also secured a legally binding protocol, making it clear how the charter is to be applied.


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