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There are three key safeguards to ensure that a legally binding charter simply maintains the existing legal position. There are the detailed general provisions in the charter itself, which set out the limits on how it is to be applied. These are reiterated in Article 6.2 of the treaty. There is a binding reference in Article 6.2, requiring due regard to be had to the explanations. These are also published in the charter, in the Official Journal. There is also a protocol to the treaty, setting out that the charter is to apply to the UK and Poland; this is not an opt-out but a legally binding guarantee as to how the charter is to be interpreted and applied. In particular, Article 1.1 in the protocol says that it does not create new justiciable rights and, under Article 1.2, charter rights that refer to national law are limited to those rights as defined in national law. I say to the noble Lord, Lord Kingsland, that Article 1.2 makes it particularly clear that solidarity rights—Chapter 4 of the charter—do not establish rights that do not exist in national law. This chapter, which also covers the right to strike, was of particular political concern. It does not in any way undermine existing rights.



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The charter’s general articles set out and limit the scope and application of the charter. They make it clear that the charter is addressed primarily to the Union institutions and affects member states only to the extent that they implement European Union law. They also clarify that the charter does not extend the powers of the Union or give it any new power or task.

The charter’s general provisions, and the explanations, make it clear that the rights in the charter sourced from the European Convention on Human Rights and EU law must be interpreted and applied in the same way as they are in their source instruments; that is, from where they come. The charter cannot be used to extend existing rights. As noble Lords who have read them will know, the explanations also set out the difference between enforceable rights in the charter and principles, which guide the actions of the Union’s institutions and the member states when implementing Union law but are justiciable only in the interpretation of such actions.

Treaty of Lisbon Article 1.8, which replaces Article 6, will provide the key safeguards in the text of the treaties. The article provides that,

that the charter provisions must be interpreted in accordance with the charter’s general articles and that “due regard” must be given to the revised charter explanations.

In addition, as I indicated, the UK secured a legally binding protocol to the charter. The UK’s position has always been that the charter sets out existing rights. It does not create any new rights and does not extend the powers of the courts. Where, as in many cases, charter rights are based on national laws and practices, they must mirror the extent and content of those national provisions. The protocol’s intention therefore is simply to confirm these points for the UK—to put it down in black and white for all to see.

The protocol has the same legal force as the treaties and is very clear. No court, including the European Court of Justice, can ignore it or strike it down. It confirms that the charter does not create any greater rights than already apply in EU law and does not extend the powers of any court—European or domestic—to strike down UK laws. It also guarantees that, to the extent that the charter refers to national laws and practices, it applies in the UK only to the extent that the rights or principles concerned are recognised in the laws and practices of the UK.

All these legal safeguards, including the protocol, will ensure that the charter does what it was intended to do, which is to record the existing rights, freedoms and principles that apply in the Union. As has been said, the European Union Committee report states clearly that the committee,

There is no question of UK citizens having fewer rights than other EU citizens due to the UK protocol. That is because the charter creates no new enforceable rights. The existing rights and principles recorded in the charter will continue to have effect as they always have done on EU institutions and member states when implementing EU law.



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Amendments Nos. 87, 87A and 88 relate to the UK protocol to the charter that I have described. The amendments would remove three non-binding interpretative paragraphs in the preamble to the UK protocol to the charter. Noble Lords involved in legal matters—

Lord Campbell of Alloway: I apologise and thank the noble Baroness for giving way. This is a very short point. It is not a question of striking down English law; the problem is that, given the jurisdiction of that Court—for example, as regards strikes—if it assumes jurisdiction and makes a decision giving health reasons or whatever, we cannot do anything about it. We cannot strike down its law. As far as we are concerned, it assumes a jurisdiction that we, as a democratic country, cannot do anything about. It is total deference, not a striking down.

Baroness Ashton of Upholland: I thought that the noble Lord had sat down and I did not catch his last sentence. It is not right to say that the court can assume jurisdiction. The European Court of Justice’s role is to look at and interpret how the institutions of the European Union are interpreting the law and make sure that the law in each country is relevant, appropriate and put into practice properly. The UK Government have for many years supported the role of the European Court of Justice in doing that. If you wish to make law stick across member states, it is important for there to be a legal body that can determine that that law has been put into practice properly. That has been the tradition of this country for hundreds and thousands of years. It is very important.

Noble Lords may not always like the decisions and judgments of European courts—indeed, on occasion they dislike the decisions of the domestic courts. None the less, I have stated the purpose of the courts. Therefore, I contest the idea that the role of the European Court of Justice is somehow to land grab by making decisions in the way that has been described.

The noble Lord who raised the issue of health is, in a sense, referring to the working time directive and I will make comment on that shortly. It is about making sure that the interpretation of the law in terms of where that principle sits is correct and proper. But when one looks at the charter and the list of where all of the articles come from and where they are grounded—whether it is in the European Convention on Human Rights—

Lord Lamont of Lerwick: The noble Baroness said that all the articles can be traced. Where does Article 13 of the charter come from?

Baroness Ashton of Upholland: I can tell the noble Lord where every single article comes from. I am very happy to provide that information, because it is incredibly useful. For those noble Lords who do not have it in front of them, Article 13 is on freedom of the arts and sciences. It states:

It derives from Article 10 of the European Convention on Human Rights, which is already part of EU law and is the same as that article.



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The noble Lord specifically asked about the genesis of Article 7 on:

In a sense, the noble Lord, Lord Lester, dealt with that when he said that it was part of Article 8 of the European Convention on Human Rights and is, therefore, already part of EU law. The noble Lord asked me about Article 29 on:

In this context, it is a principle to guide the EU institutions when they legislate. It is not an enforceable right. We continue to determine our own placement services.

If noble Lords would find it helpful, I would be more than happy to provide more detail, because it might help to assuage some of their concerns. We have tried to put as much as we can in the Library of the House, but I am always conscious that I should not overload noble Lords. We will make sure that we provide that detail as soon as possible.

Amendment No. 89 seeks to remove the additional protection for UK social and labour laws from the UK protocol to the charter. Ensuring that the UK’s labour and social legislation was protected was, and remains, a UK “red line”. The charter protocol guarantees that the charter cannot be used to undermine existing UK laws—in particular, but not exclusively, economic and social legislation. To those who have been concerned about the potential impact of a binding charter on UK law, it is right to say that the social and labour rights in the charter have been the principal source of concern.

I can reassure the House that this concern is not justified, as all the social and labour provisions in Title IV of the charter are either existing rights in UK law, are tied back to national law, or are guiding principles—for example, the one on placement services—rather than rights. Rights cannot, therefore, be created, except in so far as they are provided for in national law. A specific reference to Title IV helps to clarify the existing position on those provisions. Perhaps I may quote my noble and learned friend Lord Goldsmith from the same lecture to which I have referred. He said:

However, he continued,

So although UK social and labour laws are protected, we do not reduce the level of protection enjoyed by UK workers. I could go on, but I will not, to talk about the importance of social rights and the benefits of parental leave, European work councils and the rights for part-time workers that I believe are so essential to providing the right framework for the people in our workforce.

5.30 pm

Amendment No. 117 aims to prevent domestic courts recognising the legal status or to take account of any proceedings in courts outside the UK based on

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the charter. Amendment No. 118 adds from the noble Lords, Lord Pearson of Rannoch, Lord Willoughby de Broke, and Lord Stoddart, a further sentence—namely that the word “notwithstanding” be added at the start. There is an intellectual legal difficulty with Amendment No. 117. It runs against, I would argue, the whole scheme of the 1972 Act, which is the mechanism by which European law is implemented in the UK, because it prevents the charter having effect.

I am putting forward a very simple proposition. The UK is a member of the European Union and, as such, bound to implement EU law. Members of the Committee may not like that and may wish us elsewhere, but while we are a member of the European Union, we are bound to implement EU law. I think noble Lords know that we derive great benefit from that. It is right that the fundamental rights, freedoms and principles that are recognised in the charter apply across the whole field, binding the Union institutions and the member states when they are implementing Union law. Accepting the amendment would mean that the courts could not take account of the charter and that the UK could not ratify the Lisbon treaty.

Let me answer as many of the specific points as I can. The noble Lord, Lord Stoddart, asked whether we had consulted the Commission on the UK charter protocol. The protocol forms an integral part of the treaties—primary EU law agreed by the member states—and the Commission is a creature of the treaties so it does not have any free-standing right to rule on what is set out in the treaties. The only way of answering the noble Lord, Lord Stoddart, is to break my own promise about not quoting people. The noble Lord, Lord Howell, will have to forgive me—I will try not to do this again but I cannot think of another way of doing it. On the “Today” programme, Mr Barroso described what he believes to be the case on behalf of the Commission. He said:

That is as close as I can get to giving the noble Lord what he seeks. Bearing in mind what I have said, it would be inappropriate, at best, to formally consult a creature of the treaties about the role of the treaties.

The noble Lord, Lord Kingsland, and other Members of the Committee asked about whether the European Court of Justice in Luxemburg or the Court of Human Rights in Strasbourg has priority. The charter does not change the position. The European Court of Justice will be able to decide how fundamental rights apply in European Union law. That is what it does now. The Court of Human Rights will have the final say about the meaning of the rights in the European Court of Human Rights. So EU law has the European Court of Justice as its final arbiter and the European Court of Human Rights in Strasbourg has the final say on human rights, as is the position now. Nothing has changed.

The noble Lord, Lord Kingsland, also said—

Lord Lester of Herne Hill: I wonder whether I am right in saying that recently in the Bosphorus airline case the Strasbourg court made it clear that it will do

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its best to make sure that there are no conflicts between the two courts and that both courts in their recent case law have done their best to ensure that there will be no conflicts.

Baroness Ashton of Upholland: The noble Lord is right and, of course, knows far more about the workings of the court than I could ever dream of. I, like the noble Lord, Lord Lamont, am not a lawyer and it shows in my case more often.

The noble Lord, Lord Kingsland, asked me about litigants who do not agree with what the European Court of Justice says about fundamental rights being able to open the case. They already can—again, no change is suggested.

The noble Lords, Lord Lamont and Lord Kingsland, asked what mechanisms or timetable are in place for our EU accession to the European Court of Human Rights. I take the point that was made by my noble friend and by the noble Lord, Lord Goodhart, about the role of Russia in the ratification in Protocol 14. Article 6(2) of the EU treaty provides for the Union to accede to the ECHR but it does not give any timetable. The protocol to the treaty says an agreement on accession must include provisions on EU participation in the ECHR control mechanisms—for example, the Council of Ministers—and the mechanisms that determine which member states should be involved in these cases. If someone wants to take a case to Strasbourg, who do they litigate against—the EU or member states? It also says that the accession must not affect competence, and that individual derogations and reservations held by member states must not be affected. So any derogations that we have will be respected. No decision can be taken on any accession agreement until after the entry into force of the Lisbon treaty and any decision must be taken by unanimity in the Council of Europe and in the European Union. That is as much information as I am able to give on that.

The noble Lord, Lord Lamont, asked me about Article 50 in the treaty—double jeopardy, or ne bis in idem in Latin. Article 50 is about the right not to be tried twice in criminal proceedings for the same criminal offence. The European Court of Justice confirmed this right as a general principle of EC law in 2002 but a case can be reopened if new evidence appears. Article 4 of the ECHR’s Protocol 7 says—and UK law reflects this—that:

I shall end with another quote from my noble and learned friend Lord Goldsmith. The charter I have described will ensure the charter does what it is intended to do. He said:

I hope the noble Lords will withdraw their amendments.



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Lord Kingsland: I am most grateful to all noble Lords who have contributed to this remarkable debate on the charter. I think all noble Lords will agree it has been greatly enriched by the contribution of the noble and learned Lord, Lord Slynn, who sat for many years as a judge in the court and who brings that unique experience to our deliberations.

I was asked a question by the noble Lord, Lord Wallace of Saltaire, from the Liberal Front Bench about the Opposition’s policy towards the European Court of Justice generally and the issue of sovereignty in particular. He may be disappointed to know that although the Opposition Front Bench has many robust policies on a wide range of political matters, it has not yet got a policy on sovereignty and the powers of the European Court of Justice. However, in a personal capacity, I will try and respond, telegraphically, to his question.

It is important not to confuse two concepts of sovereignty. One concept of sovereignty—a concept in public international law—is about the relationship between one nation state and another. Year in, year out, the United Kingdom signs many international treaties and almost invariably the consequence of the signature and subsequent ratification of an international treaty is some constraint on the sovereignty of the British state to operate internationally. A very good example is the recent convention on torture. I cannot imagine that anybody of any political party would wish to remove that power from a nation state in international society. There, I think, there would be no difference between myself and the noble Lord, Lord Wallace.

However, the issue of sovereignty that this debate raises is not the issue in public international law but the issue in domestic constitutional law, which is an entirely separate concern. Here, the point has been well made by several noble Lords from whatever point of the political compass they have been travelling. Of course, when we joined the European Community, the great cases of Van Gend en Loos, Costa and ENEL were already decided. Before we entered the Community in 1972, it was clear that European Community law had the last word on matters that fell within the terms of the treaty. The concern that has grown during the past 20 years is the scope and outreach, as the Americans say, of the powers exercisable under the treaty. It is not the principle, it is the scale that has provided the problem.

My noble friend Lord Forsyth got to the root of that problem. The Community has been extremely successful in developing the rule of law; it has been extremely weak in developing a parallel concept of democracy. The speed with which the rule of law has travelled over a wider and wider range of issues and the failure of democracy to keep up with it is the fundamental weakness of the Community. As my noble friend and many other noble Lords have said, once a law is on the statute book in the European Community, it is almost impossible to reverse it—unlike the situation domestically where, if one does not like a decision of the Appellate Committee of your Lordships' House, the new Parliament can change the law and reverse it. That is almost impossible, and certainly

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almost inconceivable now in a European Community of 27 states. That is why there is so much concern about the charter and whether the protocol is really watertight.

I heard what the noble Baroness said about the efforts of the noble and learned Lord, Lord Goldsmith, and I salute those efforts; but I cannot help thinking that he would have been much better instructed by the Government to use his energies to get the Community to adhere to the European Convention on Human Rights rather than to invent an entirely new Charter of Fundamental Rights which, in my view, is otiose.

I think that it is clear—I certainly accept—that the charter does not create new rights or new competencies. I am also convinced that it cannot be used to expand existing rights; but those are not the problems that our amendments raise. They raise the problem that there is nothing to prevent a new interpretation of existing rights in the context of the charter which had their origin in the European Community changing the effect of existing law in this country. That is our concern. I am not yet convinced from what I have heard from the noble Baroness that the Government have got the wording of the protocol right. That is precisely why we have tabled our amendments.

I am most grateful to the noble Baroness for her reply. It did not convince me. I shall take the amendments away and reconsider the matter, but she can be confident that I am likely to return to them on Report. I beg leave to withdraw my amendment.


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