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(1) In accordance with Article 2, paragraph 223 of the Treaty of Lisbon, and subject to the limited exceptions specified in the treaties, the Court of Justice of the European Union shall not have jurisdiction with respect to the provisions in the treaties relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.
(2) In accordance with the Annexed Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, the Charter of Fundamental Rights of the European Union does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
(3) A court or courts in the United Kingdom designated by the Secretary of State shall have jurisdiction to determine whether a judgment or opinion rendered by the Court of Justice of the European Union is or is not in conformity with subsections (1) or (2).
(5) Any judgment or opinion which has been subject to a declaration of non conformity shall not be binding in the United Kingdom and shall not be treated as a decision to which the provisions of section 3(2) of the European Communities Act 1972 applies.
The noble Lord said: My Lords, in Committee the other day I supported the noble Lord, Lord Waddington, on an amendment that was broadly drawn but which reminded the House of the powers of this Parliament. It was criticised for rather lacking focus, but it gave me a chance to refer to how some other member states handle problems concerned with the scope of the powers of the institutions of the Union. Today, I have a sharp focus by concentrating on two powers to be denied to the European Court of Justice by, in one case, the treatyno jurisdiction in relation to the common foreign and security policy, subject to specified exceptionsand, in the other case, by the Charter of Fundamental Rights, backed up by a specially created protocol saying that the rights referred to in the charter cannot be used to strike down legislation and practices in the United Kingdom. I do not need to give noble Lords the references because they know where they arein the treaty in the first case and in the protocol in the second. My amendment tracks the language of those two treaty provisions. I say that because the protocol is declared to have the same force as any provision in the treaty.
The noble Lord, Lord Dykes, is no longer in his place, but the focus that I want to start with begins with him. On 9 December last year, he put a question to the Minister for Europe, Mr Jim Murphy, which is set out in the report of the European Union Committee, in the second volume of evidence on page S73I see that the noble Lord, Lord Grenfell, is not with us, either. To strip the question down, it was, Are you
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In general, in the Treaty and the text we are content with the powers, remit and competence of ECJ. The significant areas we were keenest on was the relationship between the ECJ and CFSP and that is clear, and perhaps it could be argued that it just confirms what happens at the moment but it confirms in Treaty text that there is no role for the ECJ in terms of Common Foreign and Security Policy, and that was important for us.
The Minister for Europe told us that the Government had been particularly keen to ensure that the relationship of the CJEU to the Common Foreign and Security Policy was clear, and welcomed the fact that the Treaty confirms ... that there is no role for the ECJ in terms of the Common Foreign and Security Policy ... that was important for us.
In answer to the noble Lord, Lord Dykes, at question 280, the Minister for Europe told the Select Committee that the other significant area where the jurisdiction of the European Court of Justice was dealt with,
In my amendment, I focus rightly or wrongly on the two provisions about the exclusion of jurisdiction on which the Government had the strongest views. That is quite clear from the Ministers oral evidence.
There were specific concerns in the UK that also existed in Poland and we sought to address those concerns ... about future competence creep of the ECJ in developing jurisdiction through case law elsewhere relying on the Charter. We wished to put it beyond any doubt whatsoever and that is the purpose of the UK and probably the Polish Protocol on the Charter of Fundamental Rights ... The horizontal articles do confirm that the Charter cannot expand any of the EUs powers at all. If you like, more colloquially put, it is a belt and braces approach. We are very clear, and all other countries are very clear, that the Charter does not create new rights, that is the belt, and the braces is we have got a Protocol for the avoidance of any doubt.
I move on from what the Minister told the committee and take the House to a speech that the noble and learned Lord, Lord Goldsmith, made in January at the British Institute of International and Comparative Law. I declare an interest. I have been a member for
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The noble and learned Lord, Lord Goldsmith, said that he had been involved with the charter since 1999. He had been asked by the then Prime Minister to be one of the draftsmen drawing up the charter and this list of rights. He said that that was a taxing job, which took much longer than he thought. The aim of drawing it up was visibility. The draftsmen were not then thinking of it in terms of it being a legally binding document. They wanted the various rights, which were scattered in conventions and other odd places where we were party to provisions that accorded rights, to be collected together in one place. However, no new rights were to be mintedthat was the word used by the noble and learned Lord.
After a year and a half, the Council, the Commission and Parliament solemnly proclaimed the charter as a political textno legal status then. Time rolls on a little and we come to the constitutional treaty and the Lisbon treaty, when there was a move to give legal status to the charter. The Government insisted that the horizontal clauses should be strengthened. That was agreed and was done, but something more was needed for specific application to the UK. The noble and learned Lord, Lord Goldsmith, said in his lecture:
However, going into the Treaty negotiations it was clear that some within the UK still needed reassurance about the possible effects of a legally binding Charterparticularly with regard to protecting UK law. The negotiations at the June European Council and subsequent Intergovernmental Conference provided Government with the opportunity to bolster the existing safeguards and set in stone how the Charter will operate in the UK, as in all Member States.
Notwithstanding all this care to create safeguards and notwithstanding the existence of the belt and braces, is it conceivable that the jurisdiction of the ECJ could trespass into the forbidden zone? Could there be what Mr Jim Murphy, the Minister for Europe, called a competence creep in the jurisprudence of the European Court of Justice?
We had a former judge of the European Court before us here giving evidence and he rather charmingly said that they do not do propensity in the European Court, which is to say that there was not a propensity to get more and more proactive, but at the same time we were left with the clear impression that the Court will develop considerable jurisprudence in the years to come and that one of the sources of that jurisprudence will be the Charter. Therefore, even though the Charter itself will not be creating any new rights, the European Courts jurisprudence will in fact be leaning very heavily in some instances on Charter rights.
On that basis, of course, my Lord Chairman, the UK Protocol in that scenario, contrary to what has been suggested, would be significant on the basis that the Protocol is clear that no right can be derived from reliance upon a text of the Charter or the rights contained within the Charter, no new EU rights can be extended as a consequence. That is the purpose of the Protocol.
The noble Lord, Lord Kerr of Kinlochard, who is not in his place any more, intervened to say that the version of the charter rights that the European Court of Justice had been citing did not contain the horizontal clauses. I rather think that he meant that the charter rights did not contain the clauses in the form in which we now have them, as they have been in since 2000. In his opinion, the protocol was unnecessary and he said that there was no reason to fear what he called,
Let us suppose that the unexpected or the remote happens and that the European Court of Justice, at some time in the future, uses an interpretation of the charter that it has adopted to strike down rights in United Kingdom legislation. It may be difficult for your Lordships even to think about that, but suppose that there were some creep into this area. What would happen? The best guide to that is the advice that we have from the lecture given by the noble and learned Lord, Lord Goldsmith. I am now turning to the end of it; I have got to page 24. The earlier part is narrative; it is about the part that he played and how he was concerned with the original drafting, then with the protocol and with the horizontal clauses. Then he has this heading in his lecture: What if the Charter is used to create/extend rights?. He said:
Despite the inclusion of these clear and binding safeguards, I have been asked what would happen if the safeguards dont work and the Charter is used to create new rights or extend existing rights. I cannot foresee how the Charter could be used to create new rights. Were I still a politician I would simply, and rightly, say that I do not comment on hypotheticals. But in this more learned environment I am free to be more speculative.
Were the Courts to disregard the clear provisions in the horizontal articles and Explanations and seek to conjure new or extended rights out of the Charter, then the UKs Protocol would indeed have teeth. It is after all a legally binding Protocol with exactly the same status as the treaty provision which gives the Charter legal effect. As such neither the ECJ nor UK courts would be able to rely on such expanded, and I would consider exorbitant, interpretations of the Charter to strike down national laws and practices or require the UK Government to change its national law and practices. In such remote circumstances the Protocol would indeed become an opt-out. That would mean that there was a non-uniform application of uniform Union law. But there are plenty of examples of the variable application of Union lawwhether by virtue of opt-outs, derogations or whatever which are permitted or required by the Treaties themselves. Such would be the case here. But I stress again that this is entirely hypothetical. The guarantee that the Protocol represents in this regard would only kick in in the circumstances where the clear safeguards in the Treaty of Lisbon and Explanations were ignored. I can not see that happening.
The noble and learned Lord is clearly saying that, if the unforeseeable, very remote, actually happened, such a judgmentthis is how I interpret it, although noble Lords can place their own interpretation on the wordsby the ECJ, adopting what he calls an exorbitant interpretation, would not be binding.
Lord Lea of Crondall: My Lords, the noble Lord refers to exorbitant interpretations by the European Court of Justice. Would he not agree with the reply given to me a week ago by the noble and learned Lord, Lord Slynn, that if the Council of Ministers and the Parliament thought a policy interpretation by the European Court of Justice was not what it had meant, they would be able to change it? The noble and learned Lord added that that was the way that the procedure would work; there was no question of running amok. That was how it worked when he was president. We live in a democracy. That is what would happen with regard to the European Court of Justice. It happened in Britain with the Taff Vale judgement and the Trade Disputes Act 1906. Reversing it takes exactly the same logic. Does the noble Lord not accept that?
Lord Neill of Bladen:The noble and learned Lord, Lord Slynn, is here, my Lords, and he can respond. My experience would be that, once the court has given a judgment, it does not go back to its debating room and say it has made a mistake. There have been cases where it has looked again at a judgment but that is very rare. I do not think the Taff Vale case would be as good a precedent as the noble Lord supposes. I think that he mentioned that the other day.
The Minister is telling us that the European Court of Justice cannot rely on the charter. He refers to the protocol being invoked then and says that we are very clear legally as to where we are. He also said that there was a legal answer if the European Court of Justice moved into this unexpected territory. One is, perhaps, entitled to infer that the Minister knew something of the views of the noble and learned Lord, Lord Goldsmith; the noble and learned Lord is now with us, so we may have the benefit of his comments on this topic.
The idea of having different decisions in different parts of the EU, the variable geometry, is clearly contemplated in what the noble and learned Lord, Lord Goldsmith, was saying. May I give the legal argument, as I see it, as to why the UK would not be bound by a judgment of the European Court of Justice if rendered outside its jurisdiction? By the treaties, there is a transfer of competence to the Union within defined limits. That can be found in the EU treaty in the consolidated volume at articles 4.1 and 5.1 Here we have an express provision that jurisdiction is not conferredit is a negativeas regards CFSP. We also have a bar on using the charter to create new rights or extending existing rights. That is the combined effect of the horizontal provisions and the protocol.
Under Article 19.1 of the EU treaty, the ECJ is bound to ensure that in the interpretation and application of the treaties the law is observed. Part of the law is
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In my speech the other day I referred to Germany and Denmark; I will not weary your Lordships with repetitions but will give the reference and the key sentence. I referred to the Brunner case in Germany and the Rasmussen case in Denmark. I quoted from the last sentence of the Brunner judgment:
Accordingly the Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them.[Official Report, 14/5/08; col. 1094.]
Lord Bach: My Lords, I am sorry to interrupt the noble Lords important speech, but I need to remind the House of the conventions in debateswhich are what we consider this to be for these purposes. There are no formal time limits. Members opening or winding-up from either side are expected to keep within 20 minutes. I know the noble Lord had an interruption, but I wonder if he could begin to bring his remarks to an end.
I think I might be allowed to say something about Poland because I was cut short on the last occasion, unless the noble Baroness, Lady Ashton, is unwilling to permit that. The source is quite interesting. All this material is elementary; it is in a student textbook by Professor Trevor Hartley, who is a professor of international
Baroness Ashton of Upholland: My Lords, I just want to be clear that it is not within my gift to give permission or to withhold it from any noble Lord. However, if the noble Lord will look at the expression on the faces of noble Lords around the House, he will see a desire
The source is in the sixth edition of Professor Hartleys book on European Union law. It is a reference to a website with summarised translations of the Polish judgments, so you do not get the ipsissima verba and thankfully the judgments are in English. The principal reasons for the ruling they gave in a case where Danish parliamentary deputies challenged accession to the EU treaty were as follows:
The communities in the European Union function in accordance with treaties establishing these organisations on the basis of, and within the limits of, the power conferred upon them by the member states. Consequently, the communities and their institutions may only operate within the scope envisaged by the provisions of the treaties.
I will not read any more, but it says the same thing about the Court of Justice. It can only operate within the limits, and the court in Poland can review it to see if the limits have been adhered to.
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